Why the 6th Circuit upheld Tennessee’s law banning abortions performed because the baby is diagnosed with Down syndrome

By Dave Andrusko

We recently were happy to post that the 6th U.S. Circuit Court of Appeals had given the state of Tennessee a big victory when a three-judge panel ruled the state could begin enforcing a ban on abortion when the abortionist knows that the woman is seeking the abortion because of the child’s sex or race or if he knows the woman is seeking an abortion because of a diagnosis of Down syndrome. In a moment we will analyze the very thoughtful and to the point majority opinion rendered by Senior Judge Eugene E. Siler, Jr. and Judge Amul Roger Thapar. (Judge Eric L. Clay dissented.)

According to Kimberlee Kruesi of The Associated Press, Samantha Fisher, a spokesperson for the attorney general’s office, issued a statement saying they “’appreciate the Sixth Circuit (in Memphis Center for Reproductive Health v. Slatery) lifting the lower court’s injunction’ and looked forward to continuing defending the statute.”

Tennessee Gov. Bill Lee, who vowed earlier in the year that he will do “whatever it takes in court” to defend the omnibus House Bill 2263/Senate Bill 2196  abortion measure, said

“Our law prohibits abortion based on the race, gender, or diagnosis of Down syndrome of the child and the court’s decision will save lives,” adding, “Protecting our most vulnerable Tennesseans is worth the fight.”

So how did Judge Eugene E. Siler, Jr. and Judge Amul Roger Thapar come to their conclusion? They began by addressing whether the district court judge’s opinion met the criteria (the “factors”) justifying a preliminary injunction.

For starters, Tennessee’s law was not vague. The plaintiffs offered a tortuous critique of the law—specifically, that the abortionist “knows”   that “the abortion is sought ‘because of’ the sex, race, or Down syndrome diagnosis of the unborn child.”

However the state explained that the law elsewhere defines “knowing” and (quoting a prior 6th Circuit decision), the  majority writes, “When the common meaning of a word provides adequate notice of the prohibited conduct, the statute’s failure to define the term will not render the statute void for vagueness.”

The law already includes an exceptiona medical-emergency affirmative defense to Section 217”—but again, the plaintiffs argue that this is vague. That was so foolish it was dismissed in less than a paragraph.

How about the likelihood the challenge would succeed on the merits? Nope.

What about “irreparable harm” [to the plaintiffs] if a stay is granted? There is irreparable harm, the majority agrees, but it is to the state if the stay is not granted!

[T]he district court’s preliminary injunction of Section 217 “subjects [the State] to ongoing irreparable harm.”  “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” The equitable factors therefore weigh in favor of granting a stay. 

We will keep you up to speed on this case and other laws that ban abortions performed for discriminatory reasons.