6th Circuit panel rejects call to stay decision blocking Tennessee’s 48 hour waiting period, court dissent explains why state will eventually prevail

By Dave Andrusko

Judge Amul Thapar

On Friday a divided panel of the 6th U.S. Circuit Court of Appeals rejected Tennessee’s request to  issue a stay so the state could revive its 48 hour waiting period while the state Attorney General appeals U.S. District Judge Bernard A. Friedman’s decision striking down the law to the full Sixth Circuit.

The three judge panel split 2-1, with Judge Helene White joining Judge Karen Nelson Moore, who described the 2015 law as “another unnecessary, unjustified and unduly burdensome state law that stands between women and their right to an abortion. Judge Amul Thapar offered a thoughtful dissent.

Unmentioned in the most recent news stories is the law was in effect for five years—from 2015 until 2020—until  Judge Friedman gutted the law in October following a four day bench trial.

As Bloomberg Law Legal Reporter Mary Anne Pazanowski wrote last week,  “Tennessee is the only state that currently can’t enforce a waiting period law, as there hasn’t been a successful federal constitutional challenge to one upheld on appeal in the nearly 30 years since the U.S.”

This, of course, is the position Tennessee has taken from the beginning, and eloquently reaffirmed by Judge Thapar.

“Since  [the 1992 case of] Casey, no federal appellate court has successfully struck down an abortion waiting period,” Judge Thapar begins. “Why? Because the Supreme Court says that waiting periods are constitutional. Planned Parenthood of Se. Pa. v. Casey. Indeed, both the Supreme Court and our court have upheld such laws. But here the majority, like the district court before it, decides to chart its own course. In doing so, the majority ignores Supreme Court and Sixth Circuit precedent, as well as the correct legal standard. Given the weighty interests involved in this case, the majority’s failure to issue a stay merits immediate correction either by our court or a higher one.”

Judge Thapar  argued

Tennessee is likely to prevail on the merits for three reasons. First, the district court impermissibly balanced the benefits and burdens of the law in violation of controlling precedent. Second, the district court failed to apply rational basis review to the State’s basis for enacting the law. And third, the district court improperly held that the law substantially burdens abortion in Tennessee. Each of these errors will require us to reverse the district court’s judgment and injunction, so Tennessee is entitled to a stay pending appeal

Judge Thapar’s allusion in the first reason the law will prevail is something  NRL News Today has reported about on numerous occasions: the impact of
Chief Justice John Roberts’ concurring opinion in  June Medical Services LLC v. Russo]

As the 8th Circuit Court of Appeals explained in a decision handed down last August, According to Chief Justice Roberts,  the appropriate inquiry under  Casey is whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not  whether benefits outweighed burdens” [“cost-benefit standard”]. Emphasis added.

Not only is the majority’ conclusion wrong under decisions rendered by the U.S. Supreme Court, Judge Thapar adds

“Under the law of our circuit, a woman faces a substantial obstacle when she is ‘deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases.’” Here, the plaintiffs failed to show that Tennessee’s law imposes such a burden.”

Judge Thapar’sfinal point” is particularly powerful.

The effects of today’s ruling will extend far beyond this case. The majority functionally overrules Casey. In doing so, it calls into question waiting-period laws in fourteen states. It also suggests that district courts (and appellate panels) have free rein to disregard controlling precedent and to substitute their preferences for the judgment of the Supreme Court. 

Abortion may be controversial. Following Supreme Court precedent shouldn’t be. I dissent.