The pro-life community is rightly excited about Dobbs, the 15-week abortion case which could finally bring American abortion law in line with scientific consensus (life in the womb plainly exists prior to viability), popular sovereignty (most Americans oppose abortion in the second and third trimesters), and international norms (the United States is one of only seven countries that allows abortion after 20 weeks). And of course, the Texas Heartbeat Act is in the spotlight for its novel approach to saving lives. But another legal development has gone largely unnoticed — and the Supreme Court is hearing oral arguments tomorrow, October 12, 2021.
Kentucky enacted a ban on dismemberment abortions (also known euphemistically as “dilation and evacuation” or “D&E”) in 2018. It has been held up in court ever since. The Sixth Circuit Court of Appeals, one step below the Supreme Court, blocked the law. But the issue the Supreme Court will consider in Cameron is not whether Kentucky’s prohibition on live dismemberment will be enforced. Instead, it must decide who can advocate for the law’s enforcement in court. This procedural focus makes Cameron less attention-grabbing than Dobbs or the Texas Heartbeat Act, but the case could still have profound implications.
For most of the lawsuit, Kentucky’s Secretary of Health and Family Services defended the law. But when the Sixth Circuit ruled in EMW’s favor, the Secretary declined to take the case any further. Two days later, Attorney General Cameron filed a motion to intervene in the case, so that he could take the Secretary’s place and continue the legal proceedings. As his brief puts it, “the Attorney General’s motion functioned to hand off the defense of Kentucky’s law from one state official to another before any appellate deadlines ran.”
The Sixth Circuit, however, found that the motion to intervene was untimely. EMW argues that Attorney General Cameron is bound by his office’s decision to get out of the lawsuit shortly after it was filed. The kicker: it wasn’t actually his office at the time. That decision was made by the previous Attorney General — none other than the current governor of Kentucky, Andy Beshear, who is staunchly pro-abortion. As Vox author Ian Millhiser sums it up, “while the 2019 election flipped the Kentucky governorship from red to blue, that same election made Cameron attorney general — meaning that the attorney general’s office flipped from blue to red.”
A coalition of twenty states filed a brief in support of Attorney General Cameron, making the point that a state’s duly enacted laws should not rise or fall upon such vagaries. They note the gamesmanship that can arise if a state is not able to easily transfer defense of a law from one official to another, in the form of “strategic surrenders.” The threat is particularly acute “where a single state officer shares the policy objectives of plaintiffs and is willing to capitulate in litigation to permit them to achieve those objectives. Such shenanigans deprive the citizens of states of the fruits of their democracies in a very tangible manner.” In other words, install a pro-abortion activist in a key enforcement role, and it won’t matter how many state legislators got elected on a pro-life platform.
If Dobbs does in fact revise Roe v. Wade and allow states to enact popular limits on second- and third-trimester abortions, it makes sense that abortion supporters will respond with exactly that strategy. Cameron gives us a glimpse of how that might play out.