On March 3, 2022, the U.S. Supreme Court decided Cameron v. EMW Women’s Surgical Center, No. 20-601, holding that the Sixth Circuit erred in prohibiting Kentucky’s attorney general from intervening to defend an abortion law once the state secretary for Health and Family Services (secretary) declined to file a petition for rehearing or a petition for a writ of certiorari to further appeal the Sixth Circuit’s judgment striking down the law as unconstitutional.
In April of 2018, the Kentucky Legislature adopted House Bill 454, which regulated certain abortion procedures. Abortion provider EMW Women’s Surgical Center sued in federal court to enjoin enforcement of the law. Two of the defendants sued were the state’s attorney general and the secretary. By stipulation, the parties agreed to dismissal of the attorney general without prejudice, with the attorney general retaining a right of appeal. The secretary remained in the case.
The district court found House Bill 454 unconstitutional, and the secretary appealed. While the appeal was pending, Kentucky elected a new attorney general and the Governor appointed a new secretary. The new attorney general then appeared as counsel on behalf of the new secretary. The Sixth Circuit affirmed the district court’s decision, and the secretary indicated it would not seek rehearing en banc or petition for a writ of certiorari. The attorney general then withdrew as counsel for the secretary and moved to intervene as a party. The Sixth Circuit denied the motion.
In an 8-1 opinion, the Supreme Court reversed. It first held that the Court of Appeals had jurisdiction to consider the motion to intervene. The Court rejected respondents’ argument that courts of appeal lack jurisdiction to consider motions for intervention by non-parties bound by the judgment below. Respondents argued that because the motion to intervene was filed by the attorney general long after the period to file a notice of appeal under Federal Rules of Appellate Procedure 3 and 4, allowing intervention would improperly circumvent the jurisdictional requirement of a timely notice of appeal. The Court rejected the point, noting there was no authority barring intervention by a third party bound by the judgment under these circumstances. The Court declined to create such a categorical claims-processing bar. The attorney general had specifically preserved its rights as to any appeal when it agreed to be dismissed from the action.
The Court further held that the attorney general may intervene. Both the secretary and the attorney general have authority to defend Kentucky’s laws, and the attorney general has a strong interest in defending a state statute. The attorney general’s motion was timely because it was filed two days after learning that the secretary would not continue to pursue the appeal, and it was not prejudicial to the respondents.
Justice Alito authored the opinion for the court. Justice Thomas filed a concurring opinion. Justice Kagan filed an opinion concurring in the judgment, which Justice Breyer joined. Justice Sotomayor filed a dissenting opinion.
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