Update March 11, 2022, at 10:13 a.m. PT:
The U.S. Supreme Court ruled on March 3 in Cameron v. EMW Women’s Surgical Center that anti-abortion Kentucky Attorney General Daniel Cameron may continue an eleventh-hour attempt to overturn the decisions of two federal courts striking down a Kentucky abortion ban as unconstitutional. The Supreme Court did not address the constitutionality of the underlying abortion ban, which will remain blocked as the case will be reargued before the U.S. Court of Appeals for the Sixth Circuit.
“Politicians in Kentucky are working overtime to force people to continue pregnancies against their will, instead of doing what is best for the people they are supposed to serve,” said Alexa Kolbi-Molinas, senior staff attorney with the ACLU Reproductive Freedom Project and lead counsel for EMW Women’s Surgical Center. “But this fight is not over and we’ll continue doing everything in our power to protect each person’s ability to get an abortion.”
Headlines about the Supreme Court’s recent ruling allowing a six-week abortion ban to go into effect in Texas have rivaled headlines about the Court’s decision to hear Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi abortion ban at 15 weeks in which many believe the Court could overturn Roe v. Wade, which established the constitutional right to abortion close to 50 years ago.
Much less attention has gone to a third abortion case before the Court this term—EMW Women’s Surgical Center v. Cameron—involving a Kentucky law effectively banning abortion at 15 weeks. The law blocks physicians from providing a medically safe and standard abortion method called dilation and evacuation, or “D&E.” The Court is hearing oral arguments in the case on Tuesday, Oct. 12.
Lower courts struck down the law twice, but the Kentucky attorney general is now trying to intervene in the case so he can reopen, and relitigate, these rulings.
“Enough is enough,” said Alexa Kolbi-Molinas, senior staff attorney with the ACLU Reproductive Freedom Project who argued the case before the Supreme Court on Tuesday. “Two courts already held that this law violates the rights of Kentuckians. The Supreme Court ought to put an end to the attorney general’s attempts to force people to continue their pregnancies against their will.”
In 2017, after Kentucky passed H.R. 454 effectively banning abortion at 15 weeks, the state’s only abortion clinic at the time—EMW Women’s Surgical Center—challenged the law, naming the attorney general as one of the defendants. Instead of defending the law, the attorney general sought and obtained a dismissal from the suit, and agreed that the Office of the Attorney General would be bound by the final judgment.
After a full trial, the U.S. District Court for the Western District of Kentucky ruled that the Kentucky ban is unconstitutional and permanently blocked enforcement of the law. On appeal, the Sixth Circuit agreed that the law violates the U.S. Constitution.
After sitting on the sidelines while two federal courts ruled that the law was unconstitutional, a new attorney general—Daniel Cameron—belatedly tried to re-enter the case. The Sixth Circuit Court of Appeals ruled that attempt came too late and denied the attorney general’s request. Cameron then appealed that decision to the Supreme Court, which agreed to hear the appeal.
Endorsed by Donald Trump, Cameron was elected in January of 2020, becoming the first Republican attorney general in Kentucky since 1948 and the first African American to hold that office.
On his official state government website, Cameron explicitly references “scripture” as his reason for why he supports anti-abortion laws like the one at issue in this case.
While the question before the Supreme Court is a procedural issue—whether the appeals court was correct in denying Cameron’s motion to intervene—the Supreme Court’s decision could revive the law and severely restrict access to abortion health care, said ACLU senior staff attorney Andrew Beck.
“If Cameron is allowed to come into the case and get this law back on the books, the impact would be devastating for people in need of abortion care in Kentucky,” said Beck. “It would simply be unavailable starting at 15 weeks of pregnancy, because the procedure that major medical associations have said is the only outpatient procedure available and that patients need and that doctors rely upon would be taken off the table. The impact would be you would be unable to get that care in Kentucky.”
People in the surrounding region would suffer too, says Beck. EMW and a new Planned Parenthood clinic in Louisville serve patients not only from Kentucky but also from Indiana, West Virginia, Tennessee and other states.
“In Kentucky, Louisville is the only location that provides abortion care and EMW is the only clinic to provide abortions after 13.6 weeks,” said Ona Marshall, owner of the EMW Women’s Women’s Clinic.
“If the law was allowed to go into effect, women would not be able to exercise their constitutional rights in Kentucky and would need to travel out-of-state. The majority of EMW patients are from Kentucky and 15 percent are from out-of-state. If patients could not access care in Kentucky it would increase their travel distance 150 to 250 miles. In addition, it would increase their time off work, transportation costs, child care costs and possibly the cost of the procedure.”
“Attorney General Cameron, like other anti-abortion politicians in the country including those in Texas, are essentially trying to recruit the Supreme Court to help them. They’re trying to rely on these procedural arguments in a way that would have a devastating impact for people on the ground who actually need the care.”
“In Texas, we see the devastation that’s caused when courts allow anti-abortion politicians to play procedural games with our constitutional rights. I think that’s exactly what’s at stake in this case as well,” said Beck. “This is a procedural issue, but fundamental rights are at stake here. I think Attorney General Cameron, like other anti-abortion politicians in the country including those in Texas, are essentially trying to recruit the Supreme Court to help them. They’re trying to rely on these procedural arguments in a way that would have a devastating impact for people on the ground who actually need the care.”
In addition to fighting at the Supreme Court, advocates are fighting at the local level as well. Two newly elected Louisville Metro Council members Cassie Armstrong and Jecorey Arthur introduced and helped pass a Buffer Safety Zone Ordinance by a vote of 14–11 in May 2021 to protect EMW and all municipal health centers, with the help of national and local partners.
“The right to abortion is hanging by a thread,” said Beck. “That’s never been more true than it is right now. The stakes for this case, for the Mississippi case and for the Texas case are incredibly high.”
“With the precedent established by Roe up for grabs in the Supreme Court this year, the right to get an abortion for people across the country is in real jeopardy,” said Kolbi-Molinas, who is arguing the case before the Supreme Court on Tuesday. “We won’t stop fighting until all of us can access the essential reproductive health care we need, regardless of where we live or how much we make.”