Chief Justice John Roberts and Judge Stephen Breyer, along with the more conservative judges of the court, appeared sympathetic to arguments that the attorney general, as an elected official, has the right to attach a continuing legal challenge to one of the state laws.
“Do you want to prevent the state from participating?” Roberts asked Alexa Kolbi-Molinas, a senior lawyer for ACLU’s Reproductive Freedom Project, who argued that Cameron’s involvement would create a “turnstile,” allowing state officials to return as a party in lawsuits after they had already left.
Roberts suggested that since the state elected a Republican attorney general while the case was running through the courts, that new official should have the opportunity to take a different stance than his Democratic predecessor.
Judges Sonia Sotomayor and Elena Kagan withdrew against those arguments. “We don’t really care about what happened in the political arena. We don’t want to be dragged into it,” Sotomayor said, noting that Cameron had missed a deadline to appeal, and then sought to intervene in the case.
“The court has held for more than a century that descendants stand in the shoes of their predecessors,” Kolbi-Molinas said in an interview later. “There’s no reset button just because there was a selection.”
The arguments in Cameron v. EMW Women’s Surgical Center originated from the 2018 Kentucky ban on a common method of surgical abortion used after 15 weeks of pregnancy known as dilation and evacuation. The law was signed by the former Republican governor, Matt Bevin, but has since been blocked by lower federal courts.
The reflections came as the high court prepares to hear a higher profile and abortion case in December over Mississippi’s 15-week abortion ban, which directly challenges Roe v. Wade. Ongoing challenges to a Texas six-week ban on abortion, which judges are allowed to enforce, could also return to the court this year either urgently or by appeals.
With Congress not passing a law to protect abortion rights and dozens of conservative states quickly passing many forms of restrictions to the procedure, the court’s rulings in this term will decide when, where and how people can terminate a pregnancy.
Kentucky Deputy Attorney General Matthew Kuhn has argued that state residents want “unsafe security” for situations in which the governor refuses to defend laws such as abortion bans. “The AG is the agent of the state. We are here on behalf of the state, ”Kuhn said.
The hearing of Tuesday’s arguments was issued due to pandemic restrictions on attendance.