10/26/2021 | News release | Distributed by Public on 10/26/2021 22:15
On October 12, the U.S. Supreme Court heard oral argument in the case Cameron v. EMW Women's Surgical Center, P.S.C., an appeal from the Sixth Circuit. Plaintiff abortion providers (collectively, "EMW") initiated this case, seeking to challenge the constitutionality of a controversial Kentucky law, H.B. 454. The law prohibits the "dilation and evacuation" abortion method commonly used in a woman's second trimester. However, the argument did not center on abortion. Instead, this case presented the question of whether the state attorneys general vested with the power the defend their states' law have the authority to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law. The justices' questions for the litigants suggested that the Court is likely to say they do.
EMW initially filed this suit in the Western District of Kentucky pursuant to 42 U.S.C. § 1983, arguing that H.B. 454 violates the Fourteenth Amendment to the U.S. Constitution by imposing an undue burden on the right to pre-viability abortion. The suit was filed against four individual Kentucky state officials in their official capacities, including then-Attorney General Andy Beshear and the secretary of Kentucky's Cabinet for Health and Family Services. The plaintiffs asked for an injunction preventing those officials from enforcing the new abortion law. Attorney General Beshear quickly moved for his dismissal from the case, asserting in a joint proposed order and stipulation that H.B. 454 did not authorize his enforcement of the law.  The district court entered an order dismissing him from the case without prejudice under the conditions that he would be bound by any final judgment in the action (subject to modification, reversal, or vacation on appeal) and that Attorney General Beshear would reserve all rights, claims, and defenses relating to whether he was a proper party to the action and in any appeals arising out of the action.
On May 10, 2019, the district court declared H.B. 454 unconstitutional, issued a permanent injunction preventing enforcement of the law, and entered final judgment in favor of the plaintiffs. The Health secretary appealed the decision to the Sixth Circuit. While the appeal was pending, Attorney General Beshear was elected as the new governor of Kentucky, and Daniel Cameron was elected as the new Kentucky attorney general. Governor Beshear's newly appointed Health Secretary Eric Friedlander chose to continue defending the constitutionality of H.B. 454 before the Sixth Circuit.
On June 2, 2020, a Sixth Circuit panel affirmed the district court's judgment. Secretary Friedlander informed Attorney General Cameron that he would not petition the Sixth Circuit for a rehearing en banc, nor file a petition for writ of certiorari with the Supreme Court. Thereafter, Attorney General Cameron moved to intervene as a party in the case, seeking to continue defense of the law on behalf of the commonwealth by petitioning for a rehearing of the case en banc. The Sixth Circuit denied Attorney General Cameron's motion to intervene as untimely. The Sixth Circuit's denial of his motion was appealed to the Supreme Court.
At the oral argument, the parties largely stuck to the primary arguments each asserted in their briefs. Attorney General Cameron, represented by his deputy solicitor general, stressed that the Sixth Circuit panel's denial of his motion to intervene interfered with Kentucky's sovereign right to designate who represents its interests in court. He framed attorney general's attempt to intervene as a simple "hand-off" from one state official to another. EMW primarily argued that the attorney general's intervention was procedurally barred given (1) the attorney general (through his predecessor) had once been a defendant in this suit; (2) his predecessor had stipulated upon dismissal that he would be bound by a final judgment in the case; and (3) as a party bound by the district court's judgment, he had the opportunity to appeal the district court's decision but failed to do so within the applicable 30-day window. Essentially, EMW asserted that Attorney General Cameron could not use intervention as an end-run around the strict, mandatory rules for appellate procedure in order to make an untimely appeal of the district court's ruling.
Overall, the justices seemed persuaded that Attorney General Cameron should be permitted to intervene. They challenged EMW's position on several fronts. Many of their questions centered on the text of the stipulation entered when Attorney General Beshear was granted his dismissal. Justice Breyer questioned the meaning of "final judgment." Justice Gorsuch also asked whether in reserving all rights, claims, and defenses relating to whether he was a proper party to the action and in any appeals arising out of the action, the attorney general had explicitly reserved the right to later intervene. But at their core, many of the justices' concerns centered on the effect of the Sixth Circuit's decision on Kentucky's ability to choose how and when to defend the constitutionality of its laws. Justice Kagan asserted it would be an "extremely harsh jurisdictional rule, or at least a counterintuitive rule," if Kentucky were left with no one to defend its law, even though significant parts of Kentucky's government supported such defense.
All that being said, Attorney General Cameron's position presented some difficult questions for the Court. First, the justices quickly noted their concerns related to the applicable standard of review in this matter: abuse of discretion. For example, Justice Thomas challenged whether there was a standard for timeliness of a motion to intervene at the appellate level given that Rule 24 of the Federal Rules of Civil Procedure governs intervention at the district court level only. Thomas questioned how the Court could hold the Sixth Circuit panel abused its discretion without some standard for timeliness with which to assess that exercise of discretion. The deputy solicitor responded, suggesting there is some "general equitable standard," and, as he did throughout the argument, brought the discussion back to sovereign interests. He stressed that there was an "obvious" abuse of discretion in this case given the great state sovereignty interests at stake - interests largely ignored by the panel. Justice Gorsuch, among others, sought to test the limits of the deputy solicitor's response, asking when those sovereign interests "run out." He questioned, "when would it be proper for a court of appeals under an abuse of discretion standard to deny intervention by a state entity?"
Second, the justices also questioned whether Attorney General Cameron's intervention could be characterized as a waiver of state sovereign immunity. Throughout the argument, the deputy solicitor repeated that the Kentucky attorney general wears two different "hats." He is tasked with the enforcement of Kentucky's laws. He is also tasked with representing Kentucky's interests in court. The deputy solicitor continuously asserted that in seeking to intervene in this case, Attorney General Cameron was wearing the latter of those two hats: He was seeking to enter the proceedings on behalf of the commonwealth - not on behalf of himself as an enforcer of the law. Justice Sotomayor appeared puzzled by this position and questioned how or why the commonwealth of Kentucky could be a party to an action brought under Section 1983 without some waiver of sovereign immunity.
Overall, the Court seemed inclined to allow Attorney General Cameron to continue defense of H.B. 454 by petitioning the Sixth Circuit for a rehearing en banc. The Court's opinion will likely center on the sovereign interest of a state in being able to control how it goes about defending its own laws. However, the Court will need to address how the Sixth Circuit panel abused its discretion in deciding it was too late for the attorney general, a former defendant to the litigation, to intervene in the matter. Additionally, the Court may choose to opine on the nature of a state attorney general's representation of state interests and whether in performing his/her duties as an agent of the state, he/she risks waiver of the state's sovereign immunity.
See EMW Women's Surgical Ctr., P.S.C. v. Meier, 373 F. Supp. 3d 807 (W.D. Ky. 2019).
 Resp. of Att'y General to Pl.' Mot. for TRO and Prelim. Inj. at 1, EMW Women's Surgical Ctr., 373 F. Supp. 3d 807 (No. 18-00224).
 Stipulation and Order of Dismissal Upon Conditions of Andrew G. Beshear at ¶ 2, EMW Women's Surgical Ctr., 373 F. Supp. 3d 807 (No. 18-00224).
EMW Women's Surgical Ctr., 373 F. Supp. 3d 807.
 Notice of Appeal, EMW Women's Surgical Ctr., 373 F. Supp. 3d 807 (No. 18-00224).
EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785 (6th Cir. 2020).
 Mot. to Intervene at 16, EMW Women's Surgical Ctr., 960 F.3d 785 (No. 19-5516).
EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 831 Fed. App'x 748 (6th Cir. 2020).
 Pet. for Writ of Cert., Cameron v. EMW Women's Surgical Ctr., P.S.C., 141 S. Ct. 1734 (2020) (No. 20-601).