U.S. Supreme Court: Kentucky’s AG has the right and responsibility to defend state abortion law against governor’s wishes

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In a case that examined who has the right to defend a state’s interests, the Supreme Court late last week ruled 8-1 that Kentucky Attorney General Daniel Cameron, R, can defend a state abortion law, despite the fact that Gov. Andy Beshear, D, had ordered Cameron’s office to drop all further legal appeals.


Quick Facts


Although the issue of abortion was part of the case known as Cameron v. EMW Women’s Surgical Center, the larger question before the Court was a separation of powers issue, specifically whether or not an attorney general has the right to defend laws dutifully enacted by the state’s legislative process even if others within the executive branch don’t want to defend that law or don’t think it’s worth defending.

In ruling for Cameron, the U.S. Supreme Court sent the case back to the Sixth Circuit Court of Appeals, with the admonition that “a State’s opportunity to defend its laws in federal court should not be lightly cut off.”

The Supreme Court’s decision ends what has been an extraordinary dispute involving electoral politics, separation of powers, partisan activism, and the rule of law. The story began in 2018 when the Kentucky legislature overwhelmingly passed the Human Rights of Unborn Children Act, also known as House Bill 454, which banned dilation and evacuation (D&E) or “dismemberment” abortions after 11 weeks’ gestation except in the case of a medical emergency. The law was quickly signed into law by then-Gov. Matt Bevin, R.

As expected, the new law was almost immediately challenged by pro-abortion interests and struck down as unconstitutional in 2019 by a federal district court. Soon thereafter, there was a shake-up among the key actors in the executive branch and this particular case. Gov. Bevin was defeated in the gubernatorial election by then-Attorney General Beshear, a pro-choice advocate, who before leaving his official capacity as chief legal officer of the commonwealth ordered his incoming predecessor, Daniel Cameron, to abide by the district court’s ruling.

Nonetheless, Beshear’s newly appointed secretary of Health and Family Services went ahead with the appeal to the Sixth Circuit and retained Cameron, the newly elected attorney general, to serve as counsel. A panel for the Sixth Circuit thereafter heard the case and in a 2-1 ruling affirmed the lower court’s ruling.

The next routine legal step would have been to ask the entire Sixth Circuit to hear the case en banc, but Beshear and his health secretary announced that they would not go forward with the appeal, effectively dropping the case.

Rather than take his marching orders, Cameron, a pro-life Republican who was elected at the same time as Beshear, asked the Sixth Circuit for the right to continue defending the law on behalf of the Commonwealth of Kentucky, and 20 other attorneys general supported him.

Cameron argued that Kentucky law “authorizes the Attorney General to ‘prosecute an appeal’ in ‘any case… whenever, in his judgment, the interest of the Commonwealth demands it.’”

The Sixth Circuit soon thereafter dismissed his request on the grounds that he was not timely enough in his request, so Cameron appealed to the U.S. Supreme Court.

In writing for the majority, Alito lambasted the Sixth Circuit for its “erroneous application of the law,” noting that it “failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense” of the law and for failing to recognize that that “the attorney general sought to intervene ‘as soon as it became clear’ that the Commonwealth’s interests ‘would no longer be protected’ by the parties in the case.”

Alito also stated that, “Respect for state sovereignty must also take into account the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court.”

Justice Sonia Sotomayor was the lone dissent. “I have no quarrel with the Court’s holding that no jurisdictional bar precluded the attorney general’s intervention. On the facts of this case, however, I disagree with the Court’s determination that the Court of Appeals’ denial of the attorney general’s motion to intervene constituted an abuse of discretion.”

Cameron hailed the decision “as a victory for the rule of law.”

He stated, “The court found that our office is the fail safe for defending the Commonwealth’s laws when they come under attack. As the court noted, we had a strong interest in stepping in to defend this important law.”

In today’s hyper-partisan environment, leaders of the executive branch too often feel compelled to pursue their own agenda rather than stand up for the law. In this case, the Kentucky state legislature and a duly elected governor have gone through the arduous process of passing a law. That law was in the process of going through judicial review as expected when the governor decided there was no need to complete that process.

Somewhere along the way, governors and other executive officials have forgotten that they are not elected to tell everyone else what to do and what not to do based on their viewpoint and opinion. The governor is not a monarch. He is not the only official who gets to decide and defend the state’s interests. Kentucky, by law, has also vested that authority in the attorney general. Cameron rightly defended the latter law by taking this case first to the Sixth Circuit and then the Supreme Court, which affirmed his authority on this matter.

Beshear and his supporters tried to throw up a red herring by claiming that the abortion law that Cameron wanted to defend is controversial and unconstitutional. It’s true that at the time, the Sixth Circuit would likely have affirmed the district court’s ruling, particularly in light of the precedents of Roe v. Wade and Casey v. Planned Parenthood. But just as Mississippi and Texas both exhausted their appeal opportunities by taking their legislatively-enacted abortion restrictions to the Supreme Court, which took up their causes to decide whether Roe and, by extension, Casey may have been unreasonably decided and overstepped state sovereignty, Kentucky also had the right and responsibility to see the process through to its natural end.

No matter the issues involved, state laws duly enacted by a representative government should be defended vigorously in the court system—no matter what party is in charge. If Gov. Beshear and his supporters don’t like the abortion law as passed, there is a legislative process in place to try to rescind it. That’s the process he should have used, rather than unilaterally undermining the will of the people through the legal system.

Our system is unique in its checks and balances: The legislation passes laws, the judicial branch reviews them, and the executive branch is tasked with defending those laws and enforcing them. Attorney General Daniel Cameron understood that, and he should be lauded for standing up for the democratic and constitutional interests of his state and that of its residents.