In its general order today, the Supreme Court granted certiorari on the first question presented by Kentucky attorney general Daniel Cameron’s certiorari petition in Cameron v. EMW Women’s Surgical Center—namely, “Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.” At the same time, it declined to grant review on Cameron’s second question, “whether the Court should vacate the judgment below and remand for further consideration in light of June Medical [Services v. Russo (2020)].”

Because this procedural question arises in a case involving a so-far-successful challenge to a Kentucky abortion statute, it is likely to attract much more attention than it otherwise would. In this post, I will try to explain what it at issue.

First, some background: In 2018, Kentucky governor Matt Bevin, a Republican, signed into law a bill that regulates the second-trimester abortion procedure known antiseptically as dilation and evacuation. In a D&E, the abortion provider uses forceps to tear apart the unborn human being limb by limb. The law prohibits D&E from dismembering an unborn child while the child is still alive. It thus requires any abortion provider who uses D&E to kill the child before beginning the dismembering.

Democrat Andy Beshear succeeded Bevin as governor in December 2019, while Republican Daniel Cameron succeeded Beshear as attorney general. Beshear appointed Eric Friedlander as his secretary for health and family services, and Friedlander, represented by Cameron, continued to defend the D&E law.

On June 2, 2020, a divided panel of the Sixth Circuit ruled that the law violates the federal Constitution. After the panel’s ruling, secretary Friedlander declined to take further steps to defend the law. Two days after learning of the secretary’s decision, attorney general Cameron moved to intervene on behalf of the state. The panel (again divided) denied Cameron’s motion to intervene.

According to Cameron’s petition, Kentucky law confers on the attorney general broad power to represent the state when its laws are challenged, and the Sixth Circuit’s ruling against intervention creates a conflict among the circuits.

I’m not going to try to dive into the merits here. Let’s instead look at where this case might lead twelve or fifteen months from now when the Court issues its decision.

If the Court rules against Cameron, this case is over. The broader import of such a ruling depends on its holding, but such a ruling would seem likely to undermine the power of state attorneys general to exercise the authority that state law gives them to defend state laws.

If the Court rules for Cameron, things are somewhat more complicated. At that point, Cameron could ask the Sixth Circuit panel to revisit its ruling in light of the Supreme Court’s ruling weeks later in June Medical. Absent a change in the panel’s composition, such a request is almost certain to be denied. If the panel declined to revisit its ruling, Cameron could seek en banc review and/or file a certiorari petition in the Supreme Court. If the en banc court were to grant review, it would likely do so in order to address the constitutionality of the Kentucky abortion law. By contrast, it’s possible that the Supreme Court would just GVR (grant, vacate, and remand) to direct the panel to consider the impact of June Medical.

The broader import of a ruling for Cameron also obviously depends how that ruling is written. But any such ruling would be likely to bolster the power of state attorneys general—in states, that is, that confer significant state-law authority on their attorneys general.