On June 2, 2020, a Sixth Circuit panel declared unconstitutional Kentucky’s regulation of second-trimester abortions. At the time, June Medical was pending before the Supreme Court. Of course, the panel could have waited till the end of June to render its decision. We all knew the decision was coming. But Judges Clay and Merritt decided time was of the essence. In dissent, Judge Bush urged the panel to “delay issuing an opinion in this case pending the Supreme Court’s disposition of June Medical Services.”
After the panel issued its decision, the Secretary for Health and Family Services (a Democrat) declined to defend the statute. The Attorney General (a Republican) tried to intervene. But the panel denied the motion to interview. The Attorney General filed a motion for rehearing. Once again, the panel denied that motion.
1. 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.
2. And if so, whether the Court should vacate the judgment below and remand for further consideration in light of June Medical.
The case was distributed for the March 19 conference, and was relisted for the March 26 conference. Today, the Court granted cert only on the first question presented. In other words, the Court will decide if the Attorney General could intervene.
The case likely will not be decided until June 2022. By granting cert, the Court has managed to keep the status of the abortion law in limbo for about more 15 months. If the Court rules against the Attorney General, then the case is over. And the Court will never decide if the Kentucky law survives June Medical review. But if the Court rules that the Attorney General can intervene, the case will go back to the Clay/Merritt panel. And, if history is any guide, the Attorney General will lose by late 2022 or early 2023. At that point, the Attorney General can seek rehearing en banc. A favorable decision may be had from the en banc court at some point in late 2023 or early 2024. No doubt, a cert petition will follow. And by that point, the Supreme Court may have 11 members. And in June 2025, Chief Justice Vanita Gutpa will write the majority opinion upholding the statute.
This statute was enacted in 2018. Because of the Supreme Court’s cert grant, this law could remain in limbo for 7 years. Nothing prevented the Court from granting cert on both questions. If the Court found the Attorney General could intervene, the Court would not need to decide the merits issue. But if the Attorney General could intervene, the merits question was teed up.
In December, I identified a taxonomy of four types of Supreme Court punts. Today’s order is a new one for me. Here, the Court granted cert on a procedural question, to delay ruling on the merits question. At least 6 Justices did not want to touch the second issue. If Justices Thomas, Alito, Gorsuch, and Kavanaugh/Barrett were ready, the Court could have granted cert on the second question. I half expected to see Thomas dissent, and say he would have granted both questions.
Now, there may be some strategery here. Perhaps the Court will grant one more abortion case next term that will clarify the scope of June Medical. (It surely isn’t Dobbs). Thus, the Court could rule for the Kentucky Attorney General, and remand in light of the new abortion precedent. But if the Court does not decide any abortion cases in OT 2021, the Kentucky issue could linger past the next presidential election.
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