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The risks in the Supreme Court’s new abortion case, explained

The Supreme Court announced on Monday that it will hear Cameron v. EMW Women’s Surgical Center, a case challenging a Kentucky state law that effectively requires abortion providers to kill a fetus in utero before performing an abortion procedure known as “dilation and evacuation.”

Yet the immediate stakes in EMW are much smaller than this description of the case suggests. The Court will hear the case, but it will not actually consider whether Kentucky’s law is constitutional — at least not yet. Instead, the Supreme Court limited its review to a narrow question: whether Kentucky’s Republican Attorney General Daniel Cameron should be allowed to bring this case to the Supreme Court “when no other state actor will defend the law.”

The question of who can defend a state law or appeal decisions striking down that law is an important question in its own right. In Hollingsworth v. Perry (2013), for example, the Supreme Court held that proponents of California’s ban on same-sex marriage could not appeal a lower court order striking down that ban — thus effectively legalizing same-sex marriage within California.

But Cameron asked the Supreme Court to do far more than simply allow him to litigate the EMW case. He also asked the Court to vacate the lower court’s order striking down Kentucky’s anti-abortion law, and the Supreme Court rather pointedly decided that it would not consider this request.

Meanwhile, the justices have spent the past several months not deciding whether to hear a second abortion case, Dobbs v. Jackson Women’s Health Organization, which asks the Court to make significant incursions upon the right to an abortion. The Court has yet to weigh in on a petition asking the justices to hear that case, which was filed last June.

The Court’s limited action on EMW, in other words, combined with its non-action in Dobbs, suggests that the justices may be taking a fairly cautious approach to abortion. The Court still has a 6-3 conservative majority. And the Court did take a swipe at abortion rights last December. So the long-term future of Roe v. Wade still looks quite grim.

But at the very least, the justices so far have seemed inclined to move slowly.

The challenge to the Kentucky law, briefly explained

Dilation and evacuation is the method abortion providers use to terminate a pregnancy after that pregnancy is in its 15th week. In 2018, when the state had a Republican governor, Kentucky enacted a law that effectively requires physicians to end the fetus’s life before performing a dilation and evacuation.

A left-leaning panel of the United States Court of Appeals for the Sixth Circuit struck down this law, holding that it violates the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), which required courts to balance “the burdens a law imposes on abortion access together with the benefits those laws confer” in determining whether a restriction on abortion is unconstitutional. (Disclosure: The Sixth Circuit’s opinion was authored by Judge Eric Clay, whom I clerked for in 2007-’08.)

As the Sixth Circuit explained, the Kentucky law effectively required many abortion patients to undergo a medical procedure that exposes them to “additional risks and burdens” without there being any evidence that the procedure is “necessary or provide any medical benefit to the patient.”

After the Sixth Circuit handed down its decision, the Supreme Court decided June Medical Services v. Russo (2020). Chief Justice John Roberts wrote the controlling opinion in June Medical, and his opinion criticized the balancing test laid out in Whole Woman’s Health.

“Courts applying a balancing test would be asked in essence to weigh the State’s interests in ‘protecting the potentiality of human life’ and the health of the woman, on the one hand, against the woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ on the other,” Roberts wrote in June Medical. According to Roberts, “there is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were.”

So there’s a very strong argument that the balancing test laid out in Whole Woman’s Health is no longer good law, and that the Sixth Circuit should be ordered to reconsider its decision in light of Roberts’s opinion in June Medical. That’s the relief that Cameron hoped to secure from the Supreme Court.

But it’s also unclear that Cameron is allowed to seek such relief from the Court.

EMW involves a nightmarishly complex procedural mess.

Much of the procedural complexity in the EMW case arises from the fact that two of Kentucky’s top offices recently changed hands.

The Kentucky law at issue in this case was signed by then-Gov. Matt Bevin, a Republican. Bevin lost his 2019 reelection bid to incumbent Gov. Andy Beshear, a Democrat. When Bevin signed the anti-abortion law, Beshear was the state’s attorney general. Beshear was replaced in that role by Cameron, who is a Republican.

When the EMW plaintiffs originally brought this lawsuit, they sued both the Kentucky attorney general’s office and the office of its health secretary, seeking a court order blocking the anti-abortion law. At the time, Beshear was attorney general and Adam Meier, a Republican appointed by Bevin, was health secretary.

While he was still attorney general, Beshear successfully sought to be removed from the case, but this move had little immediate consequence because Meier still intended to defend the law in court. But then the 2019 elections happened, and both the attorney general’s office and the governor’s office changed hands.

Beshear appointed a new health secretary, Eric Friedlander, and Friedlander decided not to appeal the state’s loss in the Sixth Circuit to the Supreme Court. Thus, with both the health secretary and the attorney general out of the case, there was no one to challenge the Sixth Circuit’s order striking down the state’s law.

Except that Cameron now wants to “intervene” in the case, a process that would allow him to appeal the Sixth Circuit’s decision to the Supreme Court. The question before the justices in EMW is whether he should be allowed to do so.

The Court’s decision to resolve that question — and only that question — is a bit odd. For one thing, it’s not immediately clear what happens if the Supreme Court allows Cameron to intervene without also agreeing to hear the question of whether the Sixth Circuit decided this case correctly — although the justices still could conceivably send the case back down to the Sixth Circuit if they do permit Cameron to intervene.

Moreover, as the unusual procedural complexities in this case demonstrate, questions about which state official is allowed to appeal a lower court decision typically turn on the specific facts of a particular case, as well as the complexities of state law. The justices normally hear major precedential cases that will define the law for the entire country. They are ordinarily much more reluctant to weigh in on fact-specific matters such as this one.

But EMW is before the justices nonetheless, albeit on very narrow grounds. And this case could still end with the Kentucky law being reinstated.

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