Cameron v. EMW Women's Surgical Center, P. S. C.
595 U.S. 267 (2022)
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Rule of Law:
A state attorney general has a strong interest in defending the constitutionality of state laws and may intervene in a federal appellate proceeding to do so, even after a lower court judgment, if another state official ceases to defend the law and the attorney general acts promptly once that need to intervene arises.
Facts:
- In April 2018, the Kentucky Legislature adopted House Bill 454 (HB 454), which regulates the abortion procedure known as dilation and evacuation.
- EMW Women’s Surgical Center and two of its doctors filed a federal lawsuit seeking to prevent the enforcement of HB 454, naming two state officials, the Attorney General (Andrew Beshear) and the Cabinet Secretary for Health and Family Services, as defendants.
- The plaintiffs agreed to dismiss claims against Attorney General Beshear without prejudice, and in doing so, the Attorney General reserved "all rights, claims, and defenses . . . in any appeals arising out of this action" and stipulated to be bound by any final judgment after all appellate review concluded.
- The Secretary for Health and Family Services remained in the case and defended the challenged law.
- Kentucky held its 2019 general elections, resulting in Andrew Beshear becoming Governor and Daniel Cameron becoming Attorney General.
- Governor Beshear appointed a new Secretary for Health and Family Services, who initially continued the defense of HB 454 on appeal.
- The new Secretary later informed Attorney General Cameron’s office that he would not file a petition for rehearing en banc or a petition for a writ of certiorari challenging the Sixth Circuit panel’s decision affirming the injunction against HB 454.
- Two days after learning of the Secretary's decision, Attorney General Cameron moved to withdraw as counsel for the Secretary and to intervene as a party on the Commonwealth’s behalf.
Procedural Posture:
- EMW Women’s Surgical Center and two of its doctors filed an action in Federal District Court for the Western District of Kentucky to enjoin enforcement of Kentucky House Bill 454.
- The plaintiffs agreed to dismiss claims against then-Attorney General Andrew Beshear without prejudice, while the Cabinet Secretary for Health and Family Services remained in the case to defend the challenged law.
- After a bench trial, the District Court held that HB 454 unconstitutionally burdens a woman’s right to an abortion and issued a permanent injunction against the law’s enforcement.
- The Secretary filed a notice of appeal to the United States Court of Appeals for the Sixth Circuit.
- Prior to oral argument before the Sixth Circuit, Attorney General Daniel Cameron entered an appearance as counsel for the new Secretary.
- A divided Sixth Circuit panel affirmed the District Court’s judgment.
- The Secretary then informed Attorney General Cameron’s office that he would not file a petition for rehearing en banc or a petition for a writ of certiorari challenging the Sixth Circuit panel’s decision.
- Two days later, the Attorney General moved to withdraw as counsel for the Secretary and to intervene as a party on the Commonwealth’s behalf in the Sixth Circuit.
- The Sixth Circuit denied the Attorney General’s motion to intervene.
- The Supreme Court granted certiorari limited to the question whether the Sixth Circuit should have permitted the attorney general to intervene.
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Issue:
Did the United States Court of Appeals for the Sixth Circuit err in denying the Kentucky Attorney General's motion to intervene in an appeal to defend a state abortion law after the Secretary for Health and Family Services, who had been defending the law, decided not to seek further review?
Opinions:
Majority - Justice Alito
Yes, the Court of Appeals erred in denying the Attorney General's motion to intervene. The Court first addressed and rejected the argument that the motion was jurisdictionally barred, finding no provision of law that limits the jurisdiction of the courts of appeals to entertain an intervention motion by a non-party bound by a judgment. The stipulation agreement specifically reserved the attorney general’s rights in any appeals, including the right to seek rehearing or certiorari. Turning to the merits of intervention, the Court held that the Sixth Circuit failed to properly account for the strength of the Kentucky Attorney General's interest in defending HB 454. A state "clearly has a legitimate interest in the continued enforceability of its own statutes," and this opportunity should not be lightly cut off. This interest is rooted in principles of state sovereignty and the state's authority to empower multiple officials to defend its interests. Congress also recognizes this weighty state interest through provisions like 28 U. S. C. §2403(b) and Fed. Rule Civ. Proc. 24(a)(1). The panel also erred in assessing the timeliness of the motion and prejudice to respondents. Timeliness "is to be determined from all the circumstances," and the Attorney General sought to intervene "as soon as it became clear" that the Commonwealth’s interests “would no longer be protected” by the Secretary, akin to United Airlines, Inc. v. McDonald. The motion was filed two days after the Secretary's decision and within the 14-day rehearing deadline. As for prejudice, allowing intervention would not have necessitated entertaining new arguments (like third-party standing) if the Sixth Circuit chose not to. Respondents' loss of expectation that the law would not be defended does not constitute legally cognizable unfair prejudice.
Concurring - Justice Thomas
Justice Thomas concurred, agreeing with the Court's opinion. He added that the Attorney General was not a "party" to the District Court's final judgment after being dismissed from the litigation, and therefore could not have filed a notice of appeal under Federal Rules of Appellate Procedure 3 and 4, which only permit "parties" to appeal. Intervention was the "requisite method for a nonparty to become a party to a lawsuit." He also critiqued Devlin v. Scardelletti, noting it was an erroneous aberration confined to class actions, and that merely agreeing to be bound by a judgment does not transform a non-party into a "party" for purposes of filing an appeal.
Concurring in judgment - Justice Kagan
Justice Kagan concurred in the judgment, agreeing that the Sixth Circuit should have allowed the attorney general to intervene. She emphasized that no jurisdictional rule directly barred the intervention and found the "claims-processing" terminology misplaced. While acknowledging that intervention should not be used to circumvent jurisdictional rules, she argued that the Attorney General's motion was not an attempt to end-run appellate deadlines. Instead, it was a response to a "major shift in the litigation"—the Secretary's abandonment of the law's defense—which created a new and urgent need for the Attorney General's participation. She noted that the Attorney General had a strong reason for intervening, as a State has a significant interest in enforcing its own laws. The motion was timely because it was filed as soon as the need arose, and it did not prejudice EMW; an unrealized expectation that the case would end is not a legally cognizable harm. She saw no need to invoke "constitutional considerations" to resolve the intervention question.
Dissenting - Justice Sotomayor
No, the Court of Appeals did not abuse its discretion in denying the Attorney General's motion to intervene. Justice Sotomayor argued that intervention decisions are highly deferential and that the Court's ruling undermines finality and settled expectations. She highlighted that the Attorney General's motion was based on arguments he had previously disavowed: earlier in the litigation, Attorney General Beshear stipulated to his own dismissal, disclaiming any responsibility or authority to enforce or defend HB 454. Under principles of judicial estoppel, a party who succeeds in maintaining a position generally cannot later assume a contrary one, especially if it prejudices others. She contended that respecting state sovereignty does not allow a state official to evade these well-established consequences. Furthermore, Kentucky law allows other state officials, like the Secretary, to defend state laws, and the Attorney General had acquiesced to the Secretary's role. She pointed out the lack of precedent for post-decision appellate intervention in such circumstances, particularly when the intervenor had previously disclaimed interest. She concluded that shifts in political winds do not justify special carve-outs to longstanding principles of estoppel, and thus the Court of Appeals acted within its "sound discretion."
Analysis:
This case clarifies the standards for intervention on appeal, particularly for state officials defending state laws. It reinforces the significant interest states have in enforcing their own statutes and provides important guidance on how timeliness and prejudice are assessed in the context of changing political circumstances or state executive branch decisions. The ruling suggests a flexible approach to appellate intervention for state attorneys general when a previously defending official drops the defense, potentially easing paths for state officials to enter or re-enter litigation to protect state interests. However, the dissent warns of potential risks to litigation finality and the circumvention of judicial estoppel principles.
