The Supreme Court of the United States has agreed to hear and rule on a case regarding abortion laws, the first it would hear since last year’s confirmation of Amy Coney Barrett changed the composition of the highest court in the land, giving conservatives a theoretical 6-3 majority.
Although the case itself is relatively small and is not a question on the constitutionality of abortion laws per se, the decision the court reaches on this issue would be closely follow by both sides of the abortion issue as an indicative of the willingness of the new Court to weight in the subject, with both pro-life and pro-choice advocates eyeing this as the possible beginning of a legal battle that could bring a significant change on the current jurisprudence on abortion.
What has the Supreme Court has agreed to hear?
The case itself, Cameron v. EMW Women’s Surgical Center, P.S.C, is centered about the ability of a state public functionary (Kentucky’s Attorney General) to defend in court a state law after lower courts have annulled them and if there are no other state public functionaries to defend the case.
The case began after the state of Kentucky passed a piece of legislation in 2018 banning the use of an abortion method known as “dilation and evacuation” for pregnancies that are 15 weeks or older. The law was first signed by the then GOP Governor (the current one is a Democrat) and was then struck down by a federal court.
The new Democratic Kentucky governorship decided not to continue to mount a legal defense over the constitutionality of the law within the court system, which lead to the Republican Attorney General to file petitions asking the courts to allow him to defend the case, something that the 6th circuit prevented him to do.
Daniel Cameron, the Attorney General in question, then filed a petition to the Supreme Court asking them to allow him to continue to defend the law as the Kentucky officials who were in charge of leading the defense of the case decided not to continue its appeal. He also filed a petition asking the Court to evaluate the consitutionality of the previous decision by lower courts to strick down the law in question.
The court decided to hear the procedural questions presented by Kentucky’s Attorney General, while denying his petition of a broader review on the lower courts decisions. Hence, the Supreme Court will not rule directly over the constitutionality of abortion restrictions itself, but about a more technical question if a state Attorney General is able to represent a state’s defense over the constitutionality of a state law after it was struck down and nobody else in the state government is lining up to defend the bill.
In other words, this case is not to determine if what the law says is constitutional but about who has the legal permission to defend the case in the federal justice system. If the court rules for Cameron, then it would set the precedent that Attorney General’s can defy the wishes of their governors and defend the constitutionality of state laws, even if the head of the state government does not want to.
The future of abortion in our current Supreme Court
Besides the practical effects of the Court’s decision, which could allow Kentucky’s AG to continue his pursue on establishing the law as constitutional, there are two key aspects that should be closely watched for those who are invested in the abortion debate in the United States: the final vote tally on the Court’s decision, and if there are any signs the judges will be willing to hear more abortion cases in the near future.
If a previous ruling on a Louisiana abortion case serves us an example, it would not be unreasonable to expect that the three justices that were appointed by Democratic Presidents (Sotomayor, Kagan, and Breyer) would probably side against Cameron and rule that he is not capacitated to continue defending the case. On the other side, many would think that the most conservative judges (Alito, Thomas, Gorsuch, Kavanaugh) should side with the AG.
The interesting votes should be those of Chief Justice John Roberts and the newest addition to the Court, Amy Coney Barrett. Roberts, although usually considered to be a part of the conservative faction in the court, was the deciding vote that struck down a Louisiana law restricting abortions, so it would be interesting to see what role he would play in this case.
Barret, who has had some previous rulings against abortion as judge, would be put on the spotlight as this would be the first time she has to directly decide on a case related to abortion since she took her position in the court.
Finally, the Court’s decision on the Cameron case might give us some lights on their willingness to hear bigger cases which could in theory overturn Roe v. Wade, the decision that made abortion legal in the U.S. Specifically, like the bill Mississippi passed in 2018 that would effectively prohibit abortions after 15 weeks and that the court has yet to decide if they would hear the case or not.
Besides the legal ramifications of any landmark decision on abortion, a reversal of Roe v. Wade could also serve as a rallying call for those Democrats who have been proposing to expand the number of seats in the Supreme Court after the confirmation of Amy Coney Barrett in late 2020. Which is why any decision the Court takes (or not) on abortion might have serious effects on the institutional makeup of the federal government.