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U.S. Supreme Court set to examine Kentucky abortion case

Published: Oct. 11, 2021 at 10:22 AM CDT
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WASHINGTON (Gray DC) - The Supreme Court is set to scrutinize the legal choices made in a battle over a Kentucky abortion law.

The case before the justices Supreme Court is technical and does not directly deal with the state law previously struck down by a lower court. But, experts said this case likely would not have made it this far without the link to one of the most divisive issues in the country.

Fights over buffer zones between patients and protesters continue to play out in Kentucky. Meanwhile, the state’s attorney general, Republican Daniel Cameron, wants to re-litigate the previous court battle over restrictions on the most common technique used to perform second trimester abortions.

“It’s our hope that we’ll be able to continue to defend this law,” Cameron said in a recent interview.

Back in 2018, Gov. Matt Bevin (R-Ky.) signed HB 454 into law. Then A.G. Andy Beshear (D-Ky.) separated himself from the case agreeing to be bound by whatever ruling the court may reach.

His legal team did represent the Health Secretary’s office though as it defended the law in court. That continued after 2019′s election, when he won the governor’s office and Cameron took over as the state’s top lawyer.

After the sixth Circuit Court of appeals agreed with the district court’s decision to strike down HB 454, Beshear’s administration dropped the case. The court ruled Cameron was bound by Beshear’s decision to stay out of the case and couldn’t step-in so late in the process.

“The court shouldn’t tell us that we can’t be let in to defend the laws of our general assembly and of our state,” said Cameron.

The question before the U.S. Supreme Court is both straightforward and legally complicated: should the 6th Circuit have let Cameron appeal?

Lawyers for the ACLU, representing EMW Womens’ Surgical Center, say no. “I think [Cameron] should read the writing on the wall, where two courts have looked at this law, found it unconstitutional, and struck it down,” said Andrew Beck.

Beck said allowing Cameron to step-in would mean that every election would have the potential to derail pending cases.

Georgetown University Law Professor Lawrence Gostin said he’s surprised the Court took the case at all. “This will be a test of whether they’re truly neutral and non-partisan,” he said.

Justice Amy Coney Barrett, speaking at a recent event with Sen. Mitch McConnell, forcefully denied any partisan influence on the court’s rulings. But, Gostin argues giving Cameron a chance to keep defending the law would offer the conservative majority another opportunity to chip away at Roe v. Wade in the future.

The Supreme Court is set to hear a case where the justices will be asked to overturn Roe v. Wade in the coming weeks. Gostin does not expect the court to fully throw out the precedent, but, “I think there will be so many exceptions and limitations… that it will be virtually a meaningless right.”

Even if the court rules against Cameron, the fight over HB 454 may not be over. That’s because the Supreme Court recently tweaked the legal tests used to determine if abortion restrictions are legal and could be grounds for Cameron to launch a new legal challenge.

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