6th Circuit panel enjoins enforcement of comprehensive Tennessee pro-life laws

AG’s Office “plans to seek further review of the case”

By Dave Andrusko

Given the composition of a three-judge panel of the 6th U.S. Circuit Courts of Appeals, it came as no surprise  Friday that it upheld a 2020 ruling by Judge William Campbell enjoining a multi-faceted pro-life law passed by the Tennessee legislature.

In the summary offered by the Tennessean’s Natalie Allison, we read that….

 Abortions are banned except to save the mother’s life

  • If the doctor knows that the woman is seeking an abortion because of the child’s sex or race.
  • If the doctor knows the woman is seeking an abortion due to  a diagnosis of Down syndrome.
  • After the point a fetal heartbeat can be detected
  • For juveniles in custody of the Department of Children’s Services, including removing the current option to petition a judge for permission.

The legislation also 

  • “Require[s] that abortion clinics post a sign in the waiting room and in patient rooms informing people that it may be possible to reverse a chemical abortion.”

If a ban on abortions after six-weeks is stricken, the legislation includes what is called a “cascading ban” that goes on to “automatically enact abortion bans at eight, 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks of gestation,” according to reporter Mariah Timms.

Writing for the panel, Senior Judge Martha Craig Daughtrey, joined by Judge Karen Nelson Moore, argued

“Although this circuit’s recent — and alarming — decisions have broadened the extent to which the government may impede a person’s constitutional right to choose whether to carry a pregnancy to term, the law remains clear that if a regulation is a substantial obstacle to a woman seeking an abortion, it is invalid.”

She then added, curiously, that

“Any decision to overturn the district court’s finding of facts and well-reasoned decision would cast this court in the role of judicial activists.”

Judge Amul R. Thapar, who joined in part, offered a vigorous dissent.

Tennessee enacted two laws: One sets time limits for abortion; the other bans abortion based on discrimination. The first law sought to join nearly every country in the world by, among other things, protecting the unborn from unnecessary pain during abortion. Tennessee did this by limiting abortions after a baby’s heartbeat can be heard. If a court finds the heartbeat restriction unconstitutional, then the limit kicks in only when a baby has reached 8 weeks gestation; if the 8-week restriction is deemed unconstitutional, then a 10-week restriction kicks in; and so on through 24 weeks. `

While Judge Thapar wrote that “None of these timing restrictions are permissible under the Roe/Casey framework,” he added

But Roe and Casey are wrong as a matter of constitutional text, structure, and history. As Justice Thomas recently reminded us, these cases “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” By manufacturing a right to abortion, Roe and Casey have denied the American people a voice on an important political issue. “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting” [quoting from a dissent in the 1992 Casey decision]. The Roe/Casey regime has moved these policy debates from the country to the courtroom. Unsurprisingly, wrenching responsibility from the hands of state legislatures and giving it to judges has resulted in acrimony and results-oriented decisions.

According to reporter Timms,A representative for the Tennessee Attorney General’s Office said their office was ‘disappointed’ in the court’s decision and plans to seek further review of the case.”