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Tennessee Abortion Bans to Get Second Look at Sixth Circuit

Dec. 2, 2021, 1:47 PM

The full Sixth Circuit will consider the constitutionality of Tennessee laws that ban abortions as early as six weeks’ gestation or are sought because of the fetus’s race, sex, or Down syndrome diagnosis, the court said.

A three-judge panel upheld a lower court decision that blocked the laws from taking effect in September. But the U.S. Court of Appeals for the Sixth Circuit vacated the decision and announced Wednesday that all its active judges will take another look at the case.

The order granting rehearing en banc came on the same day that the U.S. Supreme Court heard oral arguments asking it to overturn two pivotal cases establishing a person’s right to end a pregnancy before a fetus would be able to live independently outside the womb. A majority of the justices seemed inclined to do so—a result that would have a profound impact on this case.

A federal district court blocked Tennessee’s fetal “heartbeat” law in 2020. The law prohibits abortions after about six weeks’ gestation and at successive gestational ages up to 24 weeks.

The panel, in an opinion by Judge Martha Craig Daughtrey and joined by Judge Karen Nelson Moore, upheld the decision. The law places a substantial burden on women seeking to end pregnancies before viability and thus likely violates the 14th Amendment’s due process clause, the court said.

The reason ban is void for vagueness because it doesn’t reasonably inform doctors of the type of conduct that would subject them to criminal prosecution, the panel’s majority also said.

Judge Amul R. Thapar joined the judgment as to the gestational age ban. He is bound by Supreme Court precedent, but disagrees with it and believes the Constitution leaves questions like this one to the states, he said. He dissented from the judgment on the reason ban.

The Center for Reproductive Rights, the ACLU Foundation of Tennessee, the American Civil Liberties Union Foundation, and Planned Parenthood Federation of America represent the providers. The Tennessee Attorney General’s Office represents the state.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Memphis Ctr. for Reproductive Health v. Slatery, 6th Cir., No. 20-5969, en banc review granted 12/1/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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