Chief Justice John Roberts and Justice Stephen Breyer, as well as the more conservative justices of the court, seemed sympathetic to arguments that the Attorney General, as an elected official, has the right to join a court challenge in course against one of the laws of the state.
“Do you want to prevent the state from participating? Roberts asked Alexa Kolbi-Molinas, a senior lawyer for the ACLU Reproductive Freedom Project, who argued Cameron’s involvement would create a “revolving door” by allowing state officials to come back. as a party in the lawsuits after their departure.
Roberts suggested that since the state elected a Republican attorney general while the case was in court, this new official should be given the opportunity to take a different stand than his Democratic predecessor.
Judges Sonia Sotomayor and Elena Kagan rejected these arguments. “We don’t really care what happened in the political arena. We don’t want to be dragged into this,” Sotomayor said, noting that Cameron missed a deadline to appeal, then then sought to intervene in the case.
“The court has held for more than a century that the successors stood in the place of their predecessors,” Kolbi-Molinas said in an interview afterwards. “There is no reset button just because there was an election.”
The arguments in Cameron v. EMW Women’s Surgical Center stems from Kentucky’s 2018 ban on a common method of surgical abortion used after 15 weeks of pregnancy, known as dilation and evacuation. The law was signed by former Republican governor Matt Bevin, but has since been blocked by lower federal courts.
The deliberations came as the High Court prepares to hear a more high-profile abortion and case in December over Mississippi’s 15-week abortion ban which directly challenges Roe vs. Wade. Ongoing challenges to a six-week Texas abortion ban that judges have allowed to take effect could also return to court this year, either on an emergency basis or on appeal.
With Congress unlikely to pass legislation to protect abortion rights and dozens of conservative states moving quickly to enact many forms of procedural restrictions, court rulings this term will decide when, where and how people can terminate a pregnancy.
Kentucky Senior Assistant Attorney General Matthew Kuhn has argued that residents of the state want “fail-safe” for situations in which the governor refuses to defend laws such as the abortion ban. “The GA is the agent of the State. We are here on behalf of the state, ”said Kuhn.
The audio of Tuesday’s arguments was broadcast live due to pandemic restrictions on attendance.