The Supreme Court announced Monday that it will hear Cameron v EMW Women’s Surgical Center, a case that challenges a Kentucky state law requiring abortion providers to kill a fetus in the womb before performing an abortion procedure referred to as “dilation and evacuation”.
However, the immediate stakes in EMW are much smaller than this description of the case suggests. The court will hear the case, but it will not consider whether Kentucky’s law is constitutional – at least not yet. Instead, the Supreme Court narrowed its review to one narrow question: should Kentucky’s Republican Attorney General Daniel Cameron be allowed to take this case to the Supreme Court “if no other state actor is going to defend the law”.
The question of who can defend or appeal against a state law is an important one in itself. In Hollingsworth v. Perry (2013), for example, the Supreme Court ruled that proponents of the California ban on same-sex marriage cannot appeal a lower court order lifting that ban, effectively legalizing same-sex marriage in California.
But Cameron urged the Supreme Court to do far more than allow it to litigate the EMW case. He also asked the court to overturn the lower court order suppressing Kentucky’s anti-abortion law, and the Supreme Court ruled fairly explicitly that it would not consider that request.
Meanwhile, in recent months, judges have not ruled whether to hear a second abortion case, Dobbs v Jackson Women’s Health Organization, which is asking the court to make significant encroachments on the right to abortion. The court has not yet weighed a petition asking the judges to hear the case filed last June.
The Court’s limited action on EMW, in other words, coupled with its inaction in Dobbs, suggests that judges may be taking a fairly cautious approach to abortion. The court still has a conservative majority of 6-3. And the court canceled abortion rights last December. The long-term future of Roe v. So Wade still looks pretty bleak.
But at least so far the judges seemed inclined to move slowly.
The Kentucky Law Challenge Briefly Explained
Dilation and evacuation is the method that abortion providers use to terminate a pregnancy after that pregnancy is in its 15th week. In 2018, when the state had a Republican governor, Kentucky enacted law effectively requiring doctors to end the life of the fetus before any enlargement and evacuation take place.
A left-wing panel of the United States Court of Appeals for the Sixth Circuit has struck down this law and found it violates the Supreme Court’s decision in Whole Woman’s Health v Hellerstedt (2016) that the courts “must settle the burdens of a law.” “Imposing Access To Abortion Along With The Benefits These Laws Offer” In Determining Whether Restricting Abortion Is Unconstitutional. (Disclosure: The Sixth Circle Statement was written by Judge Eric Clay, whom I served as a clerk in 2007-08.)
As the Sixth Circuit explained, Kentucky law effectively required many abortion patients to undergo a medical procedure that exposes them to “additional risks and burdens” without evidence that the procedure was “necessary or the patient a medical one.” Brings benefits “.
After the Sixth Circle made its decision, the Supreme Court ruled June Medical Services v Russo (2020). Chief Justice John Roberts wrote the medical control opinion in June, and his opinion criticized the balance test set out in Whole Woman’s Health.
“Courts that use a balancing test would essentially be asked to weigh the interests of the state in protecting the possibilities of human life and the health of women on the one hand against the woman’s interest in freedom in defining her own concept of existence, meaning, the universe and the Mysteries of Human Life on the Other Side, ”wrote Roberts in June Medical. According to Roberts, “there is no plausible sense in which anyone, let alone this Tribunal, could objectively attach weight to such unpredictable values, and there is no meaningful way of comparing them, if any.”
So there is a very strong argument that the balance test set out in Whole Woman’s Health is no longer good law and that the Sixth Circuit should be instructed to reconsider its decision in the light of Roberts’ opinion in June Medical. That’s the relief Cameron wanted to get from the Supreme Court.
However, it is also unclear whether Cameron can apply to the Court for such relief.
EMW involves a nightmarishly complex procedural mess.
Much of the procedural complexity in the EMW case arises from the fact that two of Kentucky’s top offices have recently changed hands.
The Kentucky law at issue in this case was signed by the then government. Matt Bevin, a Republican. Bevin lost his 2019 re-election bid to incumbent Governor Andy Beshear, a Democrat. When Bevin signed the anti-abortion law, Beshear was the attorney general. Beshear was replaced in this role by Cameron, who is Republican.
When EMW plaintiffs originally filed this lawsuit, they sued both the Kentucky Attorney General and the Secretary of Health and moved a court order to block the Anti-Abortion Act. At the time, Beshear was attorney general and Adam Meier, a Bevin-appointed Republican, was secretary of health.
While he was still attorney general, Beshear successfully attempted to be removed from the case, but that move had little immediate consequence as Meier still intended to defend the law in court. But then the 2019 elections took place, and both the attorney general’s office and the governor’s office changed hands.
Beshear appointed a new Minister of Health, Eric Friedlander, and Friedlander chose not to contest the loss of state in the sixth circuit in the Supreme Court. With both the Minister of Health and the Attorney General excluded from the case, there was no one to contest the Sixth Circle’s order to break the law of the state.
Aside from the fact that Cameron now wants to “intervene” in the case, a process that would allow him to appeal the Sixth Circle’s decision to the Supreme Court. The question before the judges in EMW is whether he should be entitled to do so.
The decision of the Court of Justice to resolve this issue – and this issue only – is a bit strange. For one thing, it is not immediately clear what happens if the Supreme Court allows Cameron to step in without also agreeing to whether the Sixth Circle got this case right – although judges could still send the case back to the Sixth Circle if they did Allow Cameron to intervene.
As the unusual procedural complexities in this case show, questions about which civil servant may appeal a decision by a lower court usually depend on the specific facts of a particular case, as well as the complexities of constitutional law. Judges usually hear important precedents that define the law for the entire country. Usually they are much more reluctant to weigh factual matters like this.
Nevertheless, EMW stands before the judges, albeit for very narrow reasons. And that case could still end with the reinstatement of Kentucky law.