Nearly two years ago, a panel of the Sixth Circuit declined to let the Kentucky Attorney General intervene in a Sixth Circuit case to defend a Kentucky law.  About a week ago, the Supreme Court reversed and remanded.  This post considers likely next steps.

The case began as a constitutional challenge to House Bill 454, which regulates an abortion procedure known as dilation and evacuation.  The Kentucky Legislature adopted HB 454 in April 2018, and a district court in Kentucky permanently enjoined the law’s enforcement the next year.  The State’s Health Secretary defended the law throughout the district court proceedings and continued to defend the law at the Sixth Circuit, which ultimately affirmed the district court in an opinion written by Judge Clay.  The late Judge Merritt joined Judge Clay’s opinion and Judge Bush dissented.  Meanwhile, the people of Kentucky elected Daniel Cameron, a Republican, to be their new Attorney General, and they elected Andrew Beshear (who Cameron replaced as AG), a Democrat, to be their new Governor.

Long story short, the new Health Secretary (appointed by the new Governor) decided not to petition for rehearing en banc or petition for a writ of certiorari.  That’s when Attorney General Cameron tried to intervene, which the new Health Secretary did not oppose, and tender a petition for rehearing en banc within the 14-day deadline.  Cameron never got to file the brief.  The panel, over another dissent by Judge Bush, denied Cameron’s motion to intervene and dismissed his petition for rehearing en banc.  Last week, the Supreme Court disagreed and held that the Sixth Circuit should have allowed Cameron to intervene, handing the relatively new Kentucky Solicitor General’s Office a win in its debut Supreme Court argument.

What happens next procedurally is a little unclear, and substantively, things are even murkier.  The Supreme Court’s mandate will issue twenty-five days after its decision.  That means the mandate will issue on March 28, 2022.  But will Cameron have to file another motion to intervene?  Or will he automatically be added as a party?  Will he have to file another petition for a rehearing en banc (if he so desires)?  Or will the Sixth Circuit simply file the brief he tendered almost two years ago?  No Sixth Circuit rules speak directly to these mundane procedural questions, but it’s safe to assume the Sixth Circuit will answer them in due time.

A more important procedural question is:  which judge will replace Judge Merritt on the panel?  (We still miss Judge Merritt).  And here’s where procedure and substance begin to blend.  It’s not hard to imagine that a different judge will have a different view of the merits, which occurs in the perennially fraught context of abortion jurisprudence.  If that happens, the new panel might agree to reconsider the old panel’s decision before the Sixth Circuit even gets a chance to take the case en banc.

Moving more directly into substance, there’s also the question of how changes in the legal landscape affect any reconsideration of the case’s merits.  A lot has happened in the Supreme Court’s and the Sixth Circuit’s caselaw since the original Cameron panel issued its decision on the merits.  Since that time, the Supreme Court decided June Medical, invalidating an abortion law.  Chief Justice Roberts cast the deciding vote against the law in that case, while arguably creating a more-difficult standard for abortion plaintiffs going forward.  The Sixth Circuit, sitting en banc, then decided Preterm-Cleveland v. McCloud, where it upheld an Ohio abortion law and conclusively decided that Chief Justice Roberts’s June Medical concurrence controlled the analysis.  A few months later, the Sixth Circuit issued another en banc decision upholding an abortion law – this one from Tennessee.  And a few months after that, the Sixth Circuit announced it would rehear a case en banc about another Tennessee abortion law.  The en banc court recently stayed an injunction that the district court had granted against the law’s enforcement in that case.  Meanwhile, the country awaits a decision in Dobbs v. Jackson Women’s Health Org., which could be the case in which the Supreme Court overturns Roe v. Wade.  Given that last prospect, perhaps the most likely outcome for now is that Cameron is held pending Dobbs.  In any event, whatever Cameron’s ultimate fate, the Supreme Court’s decision last week means the case lives to see another day.