Kentuckians have a right to know when public officials abuse their power

By Jamie Lucke | Kentucky Lantern

The word “pri­va­cy” does not appear in the U.S. Constitution. But the right to pri­va­cy — to be free from base­less gov­ern­ment intru­sions into our “per­sons, hous­es, papers and effects” — is woven all through the Constitution and our laws.

Despite hav­ing sworn an oath to sup­port the Constitution and the law, for­mer Attorney General Daniel Cameron mis­used his pow­er in order to harass physi­cians who had per­formed abor­tions in Kentucky when the pro­ce­dure was still legal here.

We know this only because a court case that had been kept secret for more than a year was recent­ly unsealed. The Lantern joined with Louisville Public Media to hire lawyers to ask that the records be opened because the pub­lic needs to know — and we want to report — what hap­pens in the courts.

The pub­lic also needs to know when gov­ern­ment offi­cials abuse their pow­er, as they have long been wont to do. 

Our nation’s founders under­stood the risk of unen­cum­bered gov­ern­ment pow­er. They took pains in the Constitution to keep Americans secure from the kind of harass­ment inflict­ed by England’s monarch, whose men could search anyone’s belong­ings “with­out any cause oth­er than the per­ceived sus­pi­cion that they were polit­i­cal ene­mies.”  

In the sum­mer of 2022, in the days after Americans lost the fed­er­al­ly-pro­tect­ed right to end a preg­nan­cy, EMW Women’s Surgical Center and Planned Parenthood filed a legal chal­lenge to Kentucky’s near-total ban on abor­tion. The ban had been trig­gered into effect by the U.S. Supreme Court’s Dobbs decision. 

Two physi­cians on the University of Louisville med­ical fac­ul­ty pro­vid­ed abor­tions and trained future doc­tors at EMW —  train­ing required to main­tain the med­ical school’s accred­i­ta­tion. At a hear­ing ask­ing a judge in Louisville to block the abor­tion ban, one of the physi­cians tes­ti­fied, “Abortion is essen­tial health care. … People have the right to deter­mine whether they wish to have children.”

Cameron, who had made oppo­si­tion to abor­tion a cor­ner­stone of his polit­i­cal plat­form, was defend­ing the state’s abor­tion ban and also gear­ing up for his suc­cess­ful cam­paign to become the Republican nom­i­nee for governor.

He decid­ed to go after the physi­cians’ employ­ment records and sought the infor­ma­tion through the dis­cov­ery process. When that didn’t work, Cameron opened a crim­i­nal inves­ti­ga­tion and sub­poe­naed their W2s, 1099s, insur­ance info, time sheets and job descrip­tions under the pre­tense that a Franklin County grand jury want­ed them.

Two Kentucky courts con­clud­ed that Cameron had no evi­dence to jus­ti­fy his demands for the physi­cians’ records, that he was con­duct­ing an ille­gal “fish­ing expe­di­tion,” much like the king’s henchmen.

Significantly, Cameron’s suc­ces­sor, Attorney General Russell Coleman, also a Republican, end­ed the fish­ing expe­di­tion by opt­ing not to seek a review by the Supreme Court.

All along the way, polit­i­cal con­sid­er­a­tions appear to have steered Cameron. He pleased con­ser­v­a­tive inter­ests like the Family Foundation by going after the physi­cians’ info in the first place. But by the fall of 2023, in the heat of the guber­na­to­r­i­al race and with Democrat Andy Beshear attack­ing him on abor­tion, Cameron want­ed to keep his actions secret. He quick­ly obtained a Court of Appeals order to keep the case sealed when Franklin Circuit Judge Phillip Shepherd sig­naled his intent to open it.

Cameron mis­used his con­sid­er­able pow­ers as attor­ney gen­er­al against Kentuckians whose offense was tak­ing the oppo­site side of a divi­sive pub­lic issue. If, as the physi­cians argued, Cameron had suc­ceed­ed in obtain­ing their pri­vate infor­ma­tion, he might well have used it to pub­licly harass them or as fod­der for his campaign.

Cameron’s fig leaf of a ratio­nale was a sus­pi­cion that pub­lic mon­ey was some­how sup­port­ing abor­tion because the U of L pro­fes­sors also worked at EMW, at one time Kentucky’s only abor­tion provider. Longstanding state and fed­er­al laws ban the pub­lic fund­ing of abortions. 

But, as his own legal team admit­ted, even that flim­sy fig leaf had evap­o­rat­ed by the time Cameron issued the crim­i­nal sub­poe­na because the one-year statute of lim­i­ta­tions on that  law had expired.

To give Cameron the ben­e­fit of the doubt, to pro­tect any gen­uine inves­ti­ga­tion of any gen­uine pos­si­ble wrong­do­ing, Judge Shepherd had allowed the attor­ney general’s team to present its evi­dence pri­vate­ly or “in camera.” 

We can con­clude from the record that Cameron had no jus­ti­fi­ca­tion for prob­ing the physi­cians’ pri­vate records. Mitch McConnell’s pro­tégé, endorsed in his quest for the gov­er­nor­ship by Donald Trump, had put ambi­tion and pol­i­tics above the law he had sworn to uphold. 

Kentuckians need­ed to know that, no mat­ter how they feel about abor­tion or politics. 

If you sup­port the Lantern through your dona­tions, you helped them find out. Thank you.