FRANKFORT — Kentucky’s attorney general and two University of Louisville physicians waged a legal battle for more than a year that almost no one knew about — even though it involved the Republican candidate for governor and an issue of intense public interest.
The secrecy around the case – from its outset in June of 2023 – is highly unusual. It ended Monday when the file was unsealed under a Franklin Circuit judge’s order. The Lantern first revealed the case’s existence and reported many of its details in August based on a Court of Appeals ruling and sources with knowledge of the situation.
The newly unsealed file provides further insights into what happened when the powers of Kentucky’s top prosecutor intersected with abortion politics in an election year.
The dispute involved then-Attorney General Daniel Cameron’s efforts to pursue a criminal investigation against the two U of L physicians who, when it was still legal to do so, performed abortions and trained medical students and residents at EMW Women’s Surgical Center in Louisville. Cameron also was Kentucky Republicans’ nominee for governor last year.
After the U.S. Supreme Court ended the constitutional right to abortion in the summer of 2022, the physicians testified in court against the near-total abortion ban that immediately took effect in Kentucky.
Cameron, whose office was defending the abortion ban, then sought the physicians’ pay, tax, and other records from U of L through the civil discovery process. When that didn’t work he used a grand jury to subpoena the records as part of a criminal investigation that he said would discover whether public dollars had been misused.
In the end, the case turned on what two courts determined were Cameron’s misuse of the grand jury process and his lack of evidence of any crime.
Politics alleged
Lawyers for the physicians argued that Cameron’s actions were motivated by politics, that he was using abortion litigation “for political gain in his gubernatorial campaign” — a claim that Cameron’s office branded “offensive” and “slander.”
The doctors’ lawyers said Cameron “apparently believes that depicting abortion providers as greedy profiteers advances his arguments that abortions should be outlawed.”
It’s impossible to know how public knowledge of the case might have affected the 2023 race for governor. By September 2023 — less than two months before the gubernatorial election — the politics of abortion had changed in Kentucky.
That month Democratic incumbent Gov. Andy Beshear began airing powerful commercials featuring a rape victim and a prosecutor criticizing Cameron for opposing exceptions for rape and incest in the abortion ban. And Cameron quickly modified his position, saying he would sign legislation creating exceptions for rape and incest if the Republican-controlled General Assembly approved it.
Franklin Circuit Judge Phillip Shepherd tried to unseal the case at that time, but was thwarted by Cameron who immediately appealed the ruling to quash the subpoena and successfully pleaded to keep the case secret at least until the appeals court ruled on its merits.
Beshear defeated Cameron in the governor’s race by about 5 percentage points, and Cameron has since taken a job as executive director of a non-profit group called 1792 Exchange. (That group’s website says it works to protect small businesses, other non-profits, and philanthropic organizations from “woke” corporations.)
AG Coleman ends appeals
Cameron did not respond to an email from the Lantern sent to 1792 Exchange seeking comment on the outcome of his ill-fated investigation.
Current Attorney General Russell Coleman did not ask the Kentucky Supreme Court to review the August Court of Appeals ruling that upheld Shepherd’s decision to quash the subpoena. Rewa Zakharia, chief of the criminal division in Coleman’s office, declined comment on Friday after a court hearing when Shepherd ordered the case finally unsealed. Zakharia referred questions to the office spokesman Kevin Grout, who did not return phone messages from Kentucky Lantern.
One of the attorneys for the doctors, William Brammell, released a statement that said, “We appreciate the judge’s thoughtful handling of this case and ultimate decision to unseal it, making it available to the public. In a functioning democracy, it’s critical that citizens know what their government is doing and the judge’s decision in this case balances that right to access with our client’s understandable personal privacy interests.”
On Aug. 9 a three-judge panel of the Kentucky Court of Appeals unanimously affirmed Shepherd’s quashing of the subpoena. Its order said the subpoena amounted to a “fishing expedition” and that Cameron’s premise that tax dollars may have been illegally spent on abortions was not supported by the facts of the case.
The appeals court sent the question of whether the case should be unsealed back to Shepherd. On Friday Shepherd unsealed the case with the exception of one document, and he released 177 pages of records Monday with the names of the physicians redacted.
The U of L physicians and another physician who practiced at EMW Women’s Surgical Center initiated the case on July 21, 2023, asking Franklin Circuit Court to quash a subpoena seeking payroll, personnel and other records
They argued that Cameron unsuccessfully sought the same records in the civil case challenging the constitutionality of Kentucky’s abortion ban and that the material sought was not relevant to any possible criminal charges. They suggested a political motive which Cameron hotly disputed.
“It has become clear that Mr. Cameron will use abortion litigation, against providers and others, for political gain in his gubernatorial campaign.”
“The Court believes that the public has a right to know, and to decide for themselves, whether the Attorney General is wielding the authority granted to him appropriately and in accordance with the requirements of law.” – Franklin Circuit Judge Phillip Shepherd
Cameron said the subpoena was issued as part of his office’s responsibility to investigate “crimes involving the use of public funds.”
The plaintiffs filed the case under the pseudonyms Jane Doe 1, Jane Doe 2, and John Row, and asked that the case be sealed to protect their privacy. Cameron offered no objection and Shepherd let the case initially proceed under seal.
As the case proceeded, Shepherd, over the objections of the doctors’ lawyers, gave Cameron the opportunity to present a confidential (“in camera”) written explanation “that will set forth the subject matter of the Attorney General’s investigation.”
Cameron did so. That record remains the only part of the file still sealed. But whatever is in it, it did not convince Shepherd.
Grand jury never asked for or asked for subpoena
The judge wrote a 16-page order quashing the subpoena. Shepherd agreed with nearly all points made by the physicians’ attorneys. He said even the confidential submission from the attorney general “provides no information which grants its office jurisdiction.”
Shepherd said the investigation was brought in the wrong county because the doctors work in Jefferson County. “There is no indication that any of the conduct under investigation took place in Franklin County. Nor is there any allegation that state funds were used directly in any manner that would violate the penal code,” he ruled.
Shepherd noted that while Cameron obtained the subpoena from the clerk of the Franklin Circuit Court, the grand jury never asked for the subpoena or voted to authorize it.
And because the subpoena sought the same records Cameron was unsuccessfully trying to get in the separate civil case, the judge concluded, “this subpoena appears to be a classic ‘fishing expedition.’”
He said the doctors had a right to be concerned the information might be used in a way that would “subject them to vilification or harassment by opponents of abortion.”
The judge also said he was inclined to open the case because the public should know what goes on in court. Shepherd issued a lengthy order in which he attempted to unseal the records. “The Court believes that the public has a right to know, and to decide for themselves, whether the Attorney General is wielding the authority granted to him appropriately and in accordance with the requirements of law.”
But Cameron filed an emergency request to keep the entire file sealed, which the appeals court granted.
In August, the Court of Appeals ruling against Cameron sent the case back to Shepherd to decide whether to unseal the case.
The Kentucky Lantern and Louisville Public Media filed briefs asking that the case be opened.
Abortion politics: A Kentucky timeline
2019 – Kentucky’s legislature votes along party lines to enact two anti-abortion laws: A ban on abortions after six weeks of pregnancy. A ban on all abortions that would take effect only if the U.S. Supreme Court overturns Roe v. Wade, the so-called “trigger law.” Federal courts blocked the six-week ban.
Feb. 26, 2020 – The Family Foundation calls on Attorney General Daniel Cameron to investigate whether medical school faculty at the University of Louisville are violating state law through ties to what was then the state’s only abortion clinic, EMW Women’s Surgical Center in Louisville.
U of L President Neeli Bendapudi firmly rejects the allegations, saying U of L and EMW are separate entities. Residents in obstetrics and gynecology, as part of their training, must learn all aspects of reproductive health care, and abortion provider EMW is the only place they can learn the procedure.
March 30, 2021 – General Assembly approves putting an anti-abortion amendment on the 2022 ballot. It would add a new section stating Kentucky’s Constitution does not secure or protect a right to or funding of abortion.
June 24, 2022 – U.S. Supreme Court ends the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, overturning Roe.
EMW and Planned Parenthood, both in Louisville and Kentucky’s only abortion providers, stop performing abortions “out of an abundance of caution.”
June 27, 2022 – EMW and Planned Parenthood file suit in Jefferson Circuit Court seeking to block enforcement of the abortion ban.
July 6, 2022 – Jefferson Circuit Judge Mitch Perry hears arguments from both sides with Attorney General Daniel Cameron’s office defending the abortion ban. Among those testifying are two University of Louisville OB/GYNs who provide abortions at EMW and say abortion is essential to health care.
July 7, 2022 – Republican lawmakers in Frankfort grill U of L medical dean Toni Ganzel about whether public funds have been used to provide abortions. He tells them U of L does not pay physicians to perform abortions. Rep. Jason Nemes (R-Louisville) tells Ganzel, “If university funds are used for abortion, the taxpayers ought to know, and the legislature should take that into account when we’re talking about funding the university and other things.”
July 30, 2022 – Judge Perry issues a temporary order allowing abortions to resume in Kentucky.
Aug. 2, 2022 – Legal abortions stop after the Court of Appeals grants Cameron’s emergency request to reinstate the two laws banning almost all abortions in the state.
Aug. 3, 2022 – Two U of L professors suspend their work at EMW. U of L pauses its residency training affiliation with EMW until “we can determine the future of the relationship.”
Nov. 8, 2022 – Kentucky voters defeat the anti-abortion constitutional amendment by almost 5 percentage points, 52.3% to 47.7% or 742,232 votes to 675,634 votes.
Nov. 15, 2022 – Kentucky Supreme Court hears arguments in abortion providers’ challenge of abortion ban.
Feb. 16, 2023 – Kentucky Supreme Court leaves abortion ban in place, saying abortion providers lack standing to challenge the law on behalf of their patients, leaving unanswered questions about the ban’s constitutionality. Calling it a “significant victory,” Cameron says, “We will continue to stand up for the unborn by defending these laws.”
May 16, 2023 – Cameron wins primary, becomes Republican candidate for Kentucky governor, challenging incumbent Andy Beshear, who opposes Kentucky’s no-exceptions abortion ban, calling it “extreme.”
June 2023 – Cameron issues a Franklin County grand jury subpoena for payroll and personnel information for two unnamed U of L employees, seeking evidence that state funds may have been misused. All parties agree to seal the case.
July 2023 – Jane Does and Roe ask Franklin circuit judge to quash the subpoena.
Sept. 1, 2023 – Democrat Beshear’s campaign airs an ad featuring Jefferson County prosecutor Erin White attacking Cameron for opposing abortion ban exceptions, even for rape and incest victims. “Cameron believes rapists deserve more rights than their victims. That’s extreme. And it’s dangerous,” she says.
Sept. 18, 2023 – Cameron changes his position on abortion, saying he would sign legislation creating exceptions for rape and incest if the Republican-controlled General Assembly approved it. He later appears to soften that statement to reassure abortion opponents.
Sept. 20, 2023 – Beshear campaign airs ad in which Hadley Duvall says, “This is to you, Daniel Cameron. To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable.”
September 2023 – Franklin Circuit Judge Phillip Shepherd quashes the subpoena and tries to unseal the case records. Cameron appeals. Court of Appeals grants his emergency request to keep the case sealed, pending a final outcome.
Oct. 4, 2023 – Russell Coleman, the Republican nominee for attorney general says he supports exceptions for rape and incest and will “call on the General Assembly to take a hard look at that issue.”
Nov. 5, 2023 – Beshear and Coleman win their races by comfortable margins.
Aug. 9, 2024 – Kentucky Court of Appeals rejects the attorney general’s subpoena as an improper “fishing expedition” and outside the scope of the Franklin County grand jury because the records sought by the attorney general are from another county. Returns case to Franklin Circuit Court to consider unsealing the file.
Sept. 20, 2024 – Kentucky Lantern and Louisville Public Media file motion asking that records of the case be unsealed.
Sept. 27, 2024 – Shepherd orders the case unsealed with redactions and excluding an “in camera” filing.
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Written by Tom Loftus and Jamie Lucke. Cross-posted from the Kentucky Lantern.
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