Kentucky’s top lawyer argues right to defend pro-life law

Kentucky Right to Life Director Addia Wuchner, a former state representative, wrote and sponsored Kentucky’s House Bill 454. The bill, which protects babies in the state from dismemberment abortion, passed in 2018. On Monday, it brought Wuchner on a flight to Washington, D.C., where the U.S. Supreme Court was preparing to hear oral arguments in a case involving the law.

She brought her 15-year-old granddaughter, Elizabeth Mason, who has also followed the case for years. At about 9 a.m. Tuesday, Wuchner and Mason joined a handful of mostly local pro-lifers outside the court to support Kentucky Attorney General Daniel Cameron, who is fighting for the power to enforce the protections. At one point, Wuchner and another Kentucky pro-life activist joined a call with a network of groups to pray over the case, listening in through their earbuds as they stood outside of the court building.

The approximately 20 pro-lifers on Tuesday formed a much smaller crowd than the dozens who showed up to counterprotest the pro-abortion Women’s March in the city 10 days earlier. Texas’ heartbeat law and the upcoming abortion-related oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health have dominated national attention. By comparison, the procedural question in the Kentucky case seems almost humdrum, and Tuesday’s oral arguments did not even focus on the pro-life law itself. But the case touches on a deeper issue central to pro-life legislation: the state’s power to enforce a law passed by elected officials.

Kentucky’s dismemberment ban passed in 2018 with an overwhelming majority in both the House and the Senate. In total, only a combined 16 senators and representatives voted against the bill, while 102 lawmakers approved it. Former Gov. Matt Bevin, a Republican, signed it into law. But the state’s only abortion facility sued, saying the law put an undue burden on women seeking abortions by forbidding the most common abortion procedure for second-trimester pregnancies. A U.S. District Court and the 6th U.S. Circuit Court of Appeals took the side of the abortion facility.

After the 2019 elections, the new Democratic governor, Andy Beshear, and his administration stopped defending the law in court. But Cameron, the newly elected Republican attorney general, stepped up, calling for a rehearing in the appeals court in light of the U.S. Supreme Court’s 2020 ruling in June Medical Services v. Russo. A panel of judges on the 6th Circuit said Cameron was too late to join the case, noting the previous attorney general dismissed himself from the lawsuit. That issue came before the Supreme Court on Tuesday.

“The case at the Supreme Court right now is not on the merits of abortion law, but it’s over whether the [attorney general] has the right to defend it,” Wuchner explained. She pointed out both Democratic and Republican lawmakers voted in favor of the law in 2018, saying it seems intuitive to her that the elected officials in Kentucky’s executive branch should be able to defend the interests of citizens by enforcing state laws.

Students for Life President Kristan Hawkins sees a parallel between this legal issue and the situation in Texas, where lawmakers resorted to private enforcement mechanisms to enact a pro-life heartbeat law. “Right now, the state of Texas and state of Kentucky have the same problem—what to do when public officials refuse to do their jobs and defend life in law,” Hawkins said in a statement. “Texas decided to empower citizens, while in Kentucky, the attorney general stepped forward. ... Surely, a state’s top attorney is qualified to speak in court for those who have no voice.”

In their questions during the oral arguments, even some of the liberal justices seemed inclined to rule in favor of the attorney general. “Why can’t he just come in and defend the law?” Justice Stephen Breyer asked the lawyer representing the abortion facility. “If Kentucky law allows him to make the argument, why can’t he make the argument?” Justice Elena Kagan also zeroed in on the problem: “There’s nobody left defending the state’s law.”

Kagan called it counterintuitive to hold the current attorney general to the previous attorney general’s decision to bow out “even though there are significant parts of Kentucky’s government that still want … its law defended.”

If the court issues a favorable ruling next summer, Cameron can call for a rehearing at the appeals court. If the appeals court denies the request, he can ask the Supreme Court to examine the actual merits of the pro-life law.

To Wuchner, that law has a largely educational role, similar to the partial-birth abortion bans of the 1990s that exposed the brutality of late-term abortions. Dismemberment abortion tears apart a living unborn baby, limb by limb, and as Wuchner explained, “We incrementally sometimes have to open people’s eyes and move their hearts to what abortion is.”