Judicial

Full 6th Circuit Court of Appeals to consider comprehensive Tennessee pro-life law

By Dave Andrusko

On the same day the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the 6th Circuit Court of Appeals agreed to vacate previous rulings against a multi-faceted pro-life law passed by the Tennessee legislature ahead of a new hearing before all 16 members of the court.

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

 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.

Judge William Campbell’s decision to issue a preliminary injunction against the law came less than an hour after Gov. Bill Lee signed the bill in July 2020. 

A three judge panel of 6th circuit judges upheld Campbell’s decision in September, a decision the state appealed to the full court. 

“On Wednesday, the appeals court agreed to vacate previous rulings ahead of a new hearing before all 16 members of the court,” Tams reported. “Campbell’s original ruling blocking the implementation of the law remains in effect while the appeal continues.”

In  the decision to uphold Campbell’s injunction, 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.

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