March 7, 2022

U.S. Supreme Court in ruling against abortion access in Kentucky could lead to bigger repercussions, say legal experts

Laura Paskus

The U.S. Supreme Court.

A U.S. Supreme Court decision this week on an abortion issue has larger repercussions for constitutional rights, advocates say.

In an 8-1 decision, the court ruled in favor of allowing Republican Kentucky Attorney General Daniel Cameron to readdress a Kentucky abortion ban already resolved under Democrat Kentucky Governor Andy Beshear’s administration. A Kentucky bill prohibiting medical professionals from performing surgical abortion became law under a Repbulican administration. But under a new Democratic administration, the state of Kentucky dropped the appeal process in 2019 and the law, declared unconstitutional by a lower court, did not go into effect. Cameron, who had not been a part of the original lawsuit, then asked to appeal the lower court’s decision that the Kentucky law is unconstitutional.

While the nine Supreme Court justices did not make a decision on whether Kentucky’s law prohibiting surgical abortions is unconstitutional, the high court is allowing the Kentucky Attorney General to appeal a lower court’s ruling that the law is unconstitutional. 

Justice Sonia Sotomayor wrote the sole dissent.

Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, told NM Political Report that she was “definitely surprised” that the Supreme Court ruled that Cameron could “take a third bite at this apple after two courts have already ruled the underlying ban is blatantly unconstitutional.”

“From a procedural standpoint, regardless of the underlying issue, this opens the door for politically motivated and legally unsound challenges in all kinds of circumstances depending on the political will of attorneys general,” Rushforth said.

Similar to the Texas SB 8 law, which has opened the door to California proposing a similar strategy to allow civil lawsuits against gun manufacturers, the Supreme Court’s decision on Cameron v. EMW Women’s Surgical Center could have unintended consequences, Rushforth said. Texas SB 8 allows individuals or entities to file civil lawsuits to prohibit abortion after six weeks in that state.

“The reality is, whenever a fundamental, civil right is attacked or limited, every other fundamental, civil right is vulnerable. When we start walking back protections for these fundamental rights, it opens a can of worms,” Rushforth said.

She said the rules of civil procedure were “basically ignored,” so that the ability to know who is involved in a lawsuit going forward will no longer be a guarantee.

“This has wide ranging implications for how people access the court system and access justice,” Rushforth said.

There is another consequence of the Supreme Court’s decision this week – namely that it appears to reaffirm the court’s reluctance to rule in favor of abortion rights. Rushforth said anyone holding out hope that the Supreme Court would uphold Roe v. Wade when it makes its ruling on Dobbs v. Whole Women’s Health, the Mississippi case on that state’s 15 week abortion ban, will be “disappointed.”

She spoke of access to abortoin becoming a matter of “zip code” and that people living in some states will have fewer rights than people living in other states.

“It’s more important than ever that we understand how dangerous it is when we ban abortion,” she said.