Cameron v. EMW Women's Surgical Center, P. S. C.
The Supreme Court ruled that the Kentucky attorney general had the right to join a federal appeals court case and keep defending a state abortion law after the health secretary decided to stop, reversing the Sixth Circuit's refusal to allow it.
The decision reinforces that states have a meaningful interest in defending their own laws in federal court and that an independently elected attorney general can step into ongoing federal litigation to protect that interest when other state officials step away.
How it got here: After the Sixth Circuit struck down a Kentucky abortion law, the health secretary stopped fighting; the attorney general sought to intervene but was refused.
The Case in Depth
What happened
Kentucky passed a law regulating a particular type of abortion procedure. An abortion clinic and two of its doctors sued to block the law, naming several state officials as defendants. The attorney general was originally named but agreed to drop out early, leaving the health secretary to defend the law. After a bench trial, a federal court struck the law down as unconstitutional. The secretary appealed, lost before the Sixth Circuit, and then declined to seek further review — prompting the new attorney general to move to take over the defense.
The question before the Court
When the Kentucky official defending a state abortion law in federal court decided to stop fighting, should the state's attorney general have been allowed to step in and take over the defense?
The Court's answer
Yes — the Kentucky attorney general had the right to intervene in the federal appeals court to keep defending the state's abortion law once the health secretary chose to abandon the case. The Sixth Circuit abused its discretion in refusing to allow it.
The Court found no jurisdictional rule barring the intervention, and the motion was timely because the attorney general moved within days of learning the secretary would stop fighting — which is the correct moment from which to measure timeliness. The Court also rejected the claim that allowing intervention would unfairly harm the clinic: the attorney general was simply trying to pick up where the secretary left off, and the clinic had no legally recognized expectation that the state would simply give up before exhausting all available appeals.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
In states where multiple officials share authority to defend state laws in court, an elected attorney general can now step into an ongoing federal case when an appointed official stops fighting. This matters most in politically contested areas — like abortion — where officials from different parties may reach opposite conclusions about whether to keep defending the same law.
What changes now
The case returns to the Sixth Circuit, which must now allow the attorney general to formally join the case and may consider his petition for rehearing. The constitutionality of Kentucky's dilation and evacuation abortion law — the central issue that launched the original lawsuit — is not resolved by this ruling and remains for further proceedings in the lower courts.
What this does not decide
The Court does not decide whether Kentucky's abortion law is constitutional. The ruling only addresses whether the attorney general had the right to intervene in the appeals court; it expressly leaves the underlying constitutional challenge for the lower courts to address on remand.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas joined the majority fully but wrote separately to add a second, more fundamental reason why the respondents' jurisdictional argument fails: the attorney general was not a 'party' to the District Court's final judgment after being dismissed, so the appeal-filing rules in Federal Rules of Appellate Procedure 3 and 4 — which apply only to parties — never required him to file a notice of appeal at all. Thomas also signaled that Devlin v. Scardelletti, which used a functionalist test to treat non-parties bound by a judgment as 'parties,' was wrongly decided and should be overruled in a future case, though he found it inapplicable here.
Concurrence — Justice Kagan
Justice Kagan agreed the attorney general should have been allowed to intervene but disagreed with how the majority framed the threshold issue. She would not characterize EMW's argument as a 'claims-processing rule' question; instead she analyzed it as an anti-circumvention concern — explaining why the attorney general's intervention did not amount to an end-run around appeal deadlines, because the need to intervene only arose after the time for appeal had passed. She also objected to the majority's reliance on constitutional considerations about state sovereignty, arguing the ordinary intervention factors were sufficient and the Court should avoid unnecessary constitutional discussion.
Dissent — Justice Sotomayor
Justice Sotomayor would have affirmed the Sixth Circuit's denial as a proper exercise of its discretion. She argued the attorney general's predecessor had disclaimed any interest in the case to obtain his own dismissal, and that prior position should bind his successor. The attorney general was then attempting to reenter years later on grounds he had previously disavowed. She warned that the majority's decision would invite government officials to sit out litigation and then spring into action only after losing, undermining finality and the settled expectations of courts, litigants, and the public.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the Sixth Circuit even had the power to consider the motion. No statute or rule strips an appeals court of that power just because a would-be intervenor agreed to be bound by the judgment. More, the dismissal agreement specifically reserved 'all rights, claims, and defenses . . . in any appeals arising out of this action' — language that covers the right to seek rehearing and further Supreme Court review. So no jurisdictional barrier existed.
- With no rule directly governing appellate intervention, the Court borrowed from Federal Rule of Civil Procedure 24 — the trial-court rule governing who may join a lawsuit — and focused on the legal interest at stake. States have a constitutionally grounded sovereign power to defend their own laws in federal court, and Kentucky's attorney general is the state's chief law officer with broad authority to represent it in all cases. That sovereign interest was substantial enough to support intervention.
- On timeliness, the Sixth Circuit faulted the attorney general for waiting until years of litigation had passed. The Court disagreed, applying the principle from United Airlines v. McDonald (1977): timeliness is measured from when the need to intervene first arose. The attorney general had no reason to act while the secretary was actively defending the law; his need arose only when the secretary announced he would stop. Moving within two days of that announcement — and within the standard 14-day window for seeking full-court rehearing — was timely.
- On prejudice, the Court found the clinic had no legally cognizable expectation that the secretary would abandon the defense. The attorney general was simply trying to continue what the secretary had been doing. A new argument raised in the rehearing petition (challenging whether the clinic had legal standing to sue at all) did not have to be entertained just because intervention was granted, so it could not count as unfair prejudice to the clinic.
Doctrinal impact
Cases affected by this decision
Distinguishes NAACP v. New York (413 U. S. 345)
The Court found that case's timeliness reasoning did not apply because the circumstances here were 'starkly different.'
Reaffirms United Airlines, Inc. v. McDonald (432 U. S. 385)
Reaffirmed as the governing rule that intervention timeliness is measured from when the need to intervene first arose.