Kentucky Attorney General Daniel Cameron’s appeal to the U.S. Supreme Court in an abortion-related case appears promising after even some of the liberal justices seemed favorable to his case.
After the hearing Tuesday, Reuters, the Associated Press and other major news outlets described the justices’ questions as favorable to Cameron, a pro-life Republican who wants to defend Kentucky’s ban on brutal dismemberment abortions.
The case, Cameron v. EMW Women’s Surgical Center, is not about the pro-life law itself at this point. What the justices are considering is whether Cameron may take up the defense of the 2018 law after Gov. Andy Beshear refused to do so.
According to Reuters, “Both liberal and conservative justices asked questions during the argument that indicated sympathy toward ensuring that Cameron, as attorney general, retains the power to act even after the political party of the governor changes hands.”
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Justice Stephen Breyer, one of the liberal justices, asked the American Civil Liberties Union why Cameron should not be allowed to defend his own state’s law. The ACLU is representing the Kentucky abortion facility challenging the law.
“For the first time, we have an attorney general who thinks it’s a pretty good statute – he wants to defend it,” Breyer said. “… So if there’s no prejudice to anybody – and I can’t see where there is – why can’t he just come in and defend the law?”
Justice Elena Kagan, another liberal, also seemed critical of the ACLU’s arguments, questioning what would happen if “nobody was there to defend Kentucky’s law even though there are significant parts of Kentucky that still want its law defended,” McClatchy DC Bureau reports.
Chief Justice John Roberts, a moderate, also seemed to express support for Cameron’s case, the AP noted.
The ACLU told the justices that Cameron failed to act in a timely manner so he should not be allowed to take up the case now, according to McClatchy.
“The justices can choose to put an end to the attorney general’s attempts to force people to continue their pregnancies against their will – or allow him to intervene and open the door to his efforts to put this harmful state ban back into place,” said Jennifer Dalvern of the ACLU in a statement.
After the hearing, Attorney general Cameron commented: “Across the nation, states recognize the important role they have in protecting life and preserving the ethics of the medical profession. Kentucky is no exception, and the overwhelming passage of our law banning live dismemberment abortions signifies the commitment of Kentuckians to extend dignity and compassion to the unborn. When laws like this are challenged in court, they must be defended. My team was honored to argue before our nation’s highest court for the ability to continue defending this important law and to ensure that a state’s chosen representative can always defend its pro-life laws.”
The law at the center of the case passed in 2018 when pro-life Republican Gov. Matt Bevin was in office. Bevin’s office defended the law in court after the EMW abortion facility in Louisville sued and Beshear, a pro-abortion Democrat who was state attorney general at the time, refused to defend the law.
In the midst of the court battle, a state election occurred in which Beshear was elected governor and Cameron, a pro-life Republican, was elected attorney general. After federal courts blocked the law, Beshear’s office decided not to appeal. That was when Cameron submitted a request to be allowed to defend the law instead.
“The people of Kentucky, acting through their legislators, took action to protect unborn children and women from barbaric dismemberment abortions,” said SBA List President Marjorie Dannenfelser. “The legislation had broad bipartisan support but was thwarted by the courts. As chief enforcer of the Commonwealth’s laws, Attorney General Cameron should have the power to defend the will of the people to protect the unborn. We hope the Court will recognize his right to do so, and we thank him for his commitment to women, children, and pro-life Kentuckians.”
Attorney General Cameron commented:
It is not clear when the Supreme Court will issue a ruling on the case.
The 2018 law prohibits abortions “that will result in the bodily dismemberment, crushing or human vivisection of the unborn child” while he or she is still alive. These gruesome methods commonly are used in D&E abortions in the second trimester.
If allowed to be enforced, the law could save hundreds of babies’ lives each year. According to state abortion data, 537 of the 3,312 abortions in Kentucky in 2016 were D&E abortions.
A federal judge blocked the law, and in 2020, the Sixth Circuit Court of Appeals affirmed the ruling. When Beshear’s administration decided not to appeal, Cameron filed a motion to intervene in the case.
“We’re exhausting every possible option to ensure that this law continues to be defended and is ultimately enforced,” Cameron said at the time. “The law extends compassion and dignity to the unborn by ensuring they are not subjected to the horror and pain of the dismemberment process while still alive.”
He said he wants to ensure the law continues to receive a full defense.
“We would never allow the dismemberment of any other living being, and we are going to continue fighting, all the way to the Supreme Court if necessary, so that it can’t happen to unborn children,” Cameron said.
A dismemberment abortion is a procedure in which the abortionist first dilates the woman’s cervix and then uses steel instruments to dismember and extract the baby from the uterus. The procedure is usually performed between 11 and 24 weeks LMP, when the baby is somewhere between the size of a lemon and a cantaloupe.
By 11 weeks, unborn babies already have fingers and toes, heartbeats and detectable brain waves. They can respond to touch, yawn, suck their thumbs and even show signs of being right or left handed.
The Supreme Court also agreed to hear a direct challenge to Roe v. Wade in December. That case, Dobbs v. Jackson Women’s Health, involves a 2018 Mississippi law that prohibits abortions after 15 weeks of pregnancy when an unborn baby is nearly fully formed.