Cameron v. EMW Women’s Surgical Center, P.S.C., et al.


Whether a state attorney general, who was voluntarily dismissed and bound by a final judgment, is allowed to become a party in the case to defend the state law at issue when no other state representative will.

Oral argument: 
October 12, 2021

This case asks the Supreme Court to determine whether it is appropriate for an attorney general to intervene in a case when no other governmental representative will defend the state law, despite the attorney general’s voluntary dismissal and contradictory stipulations in the case. After the Court of Appeals for the Sixth Circuit affirmed the district court’s decision to prohibit the enforcement of a Kentucky law, the Secretary of Kentucky's Cabinet for Health and Family chose not to appeal the Sixth Circuit’s decision and Attorney General Daniel Cameron (“Cameron”) moved to intervene as a third-party to continue defending the law. Cameron argues that the court should consider the importance of the state’s legal interests, maintaining that states have the authority to decide who represents them in court, and that the Sixth Circuit abused its discretion by not permitting his intervention. EMW Women’s Surgical Center (“EMW”) counters that Kentucky’s interests were protected because the Attorney General’s office left the initial suit voluntarily and agreed to be bound by the final judgment. EMW contends that the Attorney General’s office should not receive unique exemptions from procedural rules, with intervention being appropriate at the appellate level in rare circumstances only. The outcome of this case has important implications for separation of power between the state and the federal government and for the court’s application of procedural law to state-government litigants.

Questions as Framed for the Court by the Parties 

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


Respondents EMW Women's Surgical Center ("EMW") sought to strike down Kentucky legislation, House Bill 454 (“H.B. 454”), which functionally disallowed the use of the “dilation and evacuation” abortion procedure, absent a narrow exception for medical emergencies. EMW Women's Surgical Ctr., P.S.C. v. Friedlander, at 791. The United States District Court for the Western District of Kentucky, ruled in favor of EMW, issuing an injunction to prevent the enforcement of the legislation, and held that H.B. 454 was unconstitutional because it placed an undue burden on an individual’s access to abortions, thereby violating rights guaranteed under the Fourteenth Amendment. Id. at 792. The Secretary of Kentucky's Cabinet for Health and Family (“Secretary”) appealed the district court’s decision to the Court of Appeals for the Sixth Circuit (“Sixth Circuit”), and the Sixth Circuit affirmed the decision, holding that H.B. 454 was unconstitutional and preventing its enforcement was the appropriate remedy. Id. at 811­–812.

When the Secretary chose not to appeal the Sixth Circuit’s decision, Petitioner Attorney General Daniel Cameron (“Cameron”) moved to intervene as a defendant to have the matter heard again or to have the ability to petition the matter to the United States Supreme Court. EMW Women's Surgical Ctr., P.S.C. v. Friedlander, at 749–750. The Sixth Circuit denied Cameron’s motion, rejecting Camron’s argument that an impending decision from the Supreme Court in June Medical Services, LLC v. Gee (“June Medical”), would give Cameron the ability to participate in the case as a third-party, and ruled that Cameron’s motion was untimely and would significantly prejudice EMW. Id. at 752. Five days after Cameron’s motion to intervene was denied by the Sixth Circuit, the Supreme Court issued a decision on June Medical. Petition for Writ of Certiorari, Daniel Cameron, Attorney General at 17. On the basis that the decision in June Medical would alter the result in the present case, Cameron subsequently submitted a writ of certiorari to the Supreme Court. Id. at 1. Cameron asked the Court to decide whether a state attorney general could intervene in such cases when no other actor would defend a state law, and, if so, whether the Court should vacate and remand the decision on the constitutionality of Kentucky’s abortion law for further proceedings in line with June Medical. See id. at 3­–4.

The United States Supreme Court granted Cameron certiorari—on the first question only—on March 29, 2021.



Petitioner Cameron contends that, in an action that involves a challenge to a state law, courts should consider the importance of the state and its legal interest when balancing federal power and a state’s sovereignty. Brief for the Petitioner, Daniel Cameron, Attorney General at 19. Cameron maintains that a state must have the authority to decide who represents it in court as part of its sovereignty. Id. at 20, 32. Even if other litigants’ motions would be considered late or improper, Cameron asserts that the courts can allow the designated representatives of states, such as the attorney general, to intervene where it involves the strong interests of the state. Id. at 28. Cameron emphasizes that the state entity vested with the responsibility of defending the state in court has the authority to replace the current representative when their interests diverge. Id. at 22. Cameron argues that this lawsuit is against the state of Kentucky itself and preventing Cameron as the Attorney General from replacing the Secretary of Kentucky's Cabinet for Health and Family (“Secretary”) as the representative of the state after the Secretary chose not to continue defending the state law, prevents the state of Kentucky from effectively defending its laws. Id. at 24, 31.

EMW counters that Kentucky’s sovereign interests were protected because the Attorney General left the initial suit voluntarily, agreeing to be bound by the final judgment, and while the Attorney General can intervene on behalf of the state, there is no rule that gives the Attorney General unique consideration or exempts him from the procedural rules that govern the actions of all other litigants. Brief for the Respondents, EMW Women’s Surgical Center, P.S.C., et al. at 35–36. While the Attorney General did not do so, EMW asserts that the Attorney General could have continued to stay in the suit or intervened earlier to defend the state’s interests. Id. at 38. Additionally, EMW asserts that the Attorney General is attempting to impermissibly reverse his position from the district court proceedings in which he contended that he did not have the authority to enforce House Bill 454 (“H.B. 454”). Id. at 42. EMW further maintains that the law at issue only allows for action to be taken against an official, not the state, demonstrating that even if the interests of the state are implicated, the state must follow procedural rules to intervene in the suit like any other nonparty. Id. at 41. EMW notes that the Attorney General had proper means of intervention if he was concerned about the effect of the decision in June Medical Services, LLC v. Gee (“June Medical”), by intervening through Rule 60(b)(5) of the Federal Rules of Civil Procedure if June Medical altered the law that would affect this case. Id. at 36.


Cameron contends that the court abused its discretion by not allowing his motion to intervene, even if the state is not entitled to unique consideration. Brief for the Petitioner at 32. Cameron maintains that the court incorrectly held that Cameron should have known the Secretary no longer represented his interests and should have preemptively intervened. Id. at 33. Since the Secretary used the office of the Attorney General as counsel even after the election of a different governor, Cameron asserts that he should have been able to rely on the Secretary and could not have predicted that the current representative would not appeal the decision Id. Cameron holds that the Sixth Circuit Court erroneously placed significant emphasis on the timing of the motion being several years since the case began and after the decision of the court. Id. at 36. Cameron also claims the court incorrectly treated intervention for a rehearing at the appellate level as being more strict than at the trial level, asserting that case law supports a state’s motion to intervene even at the appellate level where the case affects its interests. Id. Given the exceptional circumstances presented by the upcoming decision in June Medical and the Secretary’s decision not to appeal, Cameron argues that intervention is even more appropriate. Id. at 43. Cameron further maintains that granting the intervention would not prejudice EMW because he only was carrying out an appeal in lieu of the Secretary and the court had the discretion to limit the issues on appeal. Id. at 38–39, 41.

EMW counters that intervention should only be allowed in very rare circumstances at the appellate level, especially when the party did not intervene prior to a decision of an appellate court. Brief for the Respondents, at 22. Since Cameron agreed to be bound by the outcome of the trial court decision and did not appeal within the deadline, EMW contends, the motion to intervene was too far into the lawsuit, particularly given that Cameron waited months to intervene after becoming aware of the new Secretary’s adversity to the suit. Id. at 25, 28. EMW maintains that the court did not abuse its discretion in denying the intervention because Cameron was attempting to bring forth two arguments to enter the suit that were not previously asserted by the Secretary and thereby waived or based upon the unconnected, upcoming decision in June Medical. Id. at 26–27. Given that Cameron sought to intervene on grounds that had been waived, EMW asserts, there would have been clear prejudicial impact on EMW as they reasonably believed no appeal would occur given the Secretary’s lack of continued action in the case. Id. at 31. EMW contends that no major unusual circumstances existed that supported the intervention because at the time Cameron’s motion was denied, June Medical had not yet been decided, and if the forthcoming decision changed the law that gave Cameron ground to intervene, he could do so after such a decision. Id. at 32.



Arizona and other states (“Arizona”), in support of Attorney General Daniel Cameron, assert that it is important to reinforce the rights of states to defend their own laws in order to preserve their sovereignty from the federal government. Brief of Amici Curiae, Arizona et al., in Support of Petitioner at 5. Arizona continues that the state legislation is more accommodating to the diverse interests of the states and allows for a better reflection of individual’s democratic choices. Id. at 6. The division of power between federal and state governments must be honored, Arizona maintains, as it is integral to the states’ abilities to be responsive to their citizenry and preserve voters’ rights to elect legislators and statewide officials of their choosing. Id. at 6.

Referencing Congress’s right in creating jurisdiction for the lower courts, Federal Court Scholars, in support of EMW Women's Surgical Center ("EMW"), argue that Congress considered the bounds of state sovereignty in establishing rules for intervention and corresponding deadlines. Brief of Amici Curiae, Federal Court Scholars, in Support of Respondents at 7. Federal Court Scholars maintain that Congress has specifically limited appellate jurisdiction to appeals filed within an appropriate time period, and granting Cameron’s motion, who is not exempt from these time restrictions, would circumvent clear power limits on Federal courts. Id. at 7. Federal Court Scholars argue that allowing the Cameron to appeal the final judgment at any time without a deadline would infringe on Congressional power used to create the rules of appeal, thereby violating, rather than reinforcing, the separation of powers. Id. at 11.


Arizona contends that allowing state officials to defend state law where they are authorized to do so is integral in preserving the efficiency of both the role of the state officials and the federal courts. Brief of Amici Curiae, Arizona et al. in Support of Petitioner at 14. Requiring state official to intervene at the beginning of a case when other representative are currently defending the law in question would increase inefficiency in the process by bringing unnecessary parties into the litigation and compelling individuals to guess whether their intervention in the case will be timely. Id. at 14. Additionally, Arizona argues that allowing state officials, such as Cameron, to intervene would prevent individuals from picking and choosing which state official to bring a suit against based on how likely they were to settle the case, thereby averting unequitable outcomes. Id. at 15.

Federal Court Scholars argue that allowing Cameron to appeal the final judgment in this way would allow for “piece-meal litigation” that would severely undermine the efficiency of the court system by permitting multiple courts to rule on the same issue. Brief of Amici Curiae, Federal Court Scholars, in Support of Respondents at 14. Furthermore, permitting an intervention as proposed by Cameron, Federal Court Scholars argue, would lead to greater systemic inefficiency, as courts may need to re-litigate appeals already decided on the merits, increasing the length of remands and appeals as the consequences of courts’ judgments not properly being treated as final. Id. at 16, 17. Additionally, Federal Court Scholars warn that allowing state officials to act without regard to jurisdictional deadlines and previous stipulations, such as Cameron, would create substantial unfairness within the justice system and give state officials improper advantages in a litigation. Id. at 12, 17, 20.



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