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Texas, Tennessee Get Go-Ahead to Enforce Abortion Restrictions

June 29, 2022, 2:19 PM

Two federal appeals courts gave Texas and Tennessee the green light to enforce restrictions on abortion following the US Supreme Court’s June 24 decision that there’s no federal constitutional right to end a pregnancy.

The US Court of Appeals for the Fifth Circuit, in an unsigned opinion, vacated a lower court’s order blocking Texas’ fetal remains disposal laws. Separately, the US Court of Appeals for the Sixth Circuit ended a preliminary injunction that would have prohibited Tennessee from forbidding most abortions after about six weeks or when sought for allegedly discriminatory reasons.

Both courts acted on Tuesday, sending the cases back to the federal trial courts for further proceedings.

Texas’ laws apply to facilities where abortions are performed. They require facilities to dispose of fetal remains through interment, cremation, incineration followed by interment, or steam disinfection followed by interment. Ashes may be scattered or interred, but may not be placed in a landfill.

The lower court assessed the laws using the undue burden standard developed in Planned Parenthood of Southeastern Pennsylvania v. Casey, which the top court overturned along with Roe v. Wade. It concluded that the laws placed “significant burdens” on abortion access that far outweighed their benefits.

Abortion providers in Tennessee won an injunction against two Tennessee laws in 2020. The first is a “heartbeat” abortion law—so-called because it prohibits abortions after cardiac activity is detected, which is usually around the sixth week of pregnancy. The second is a “reason” ban criminalizing abortions based on a fetus’ race, sex, or Down syndrome diagnosis, regardless of gestational age.

A three-judge panel for the Sixth Circuit upheld the injunction, but a full panel of the court’s active judges vacated the decision and granted a rehearing en banc on the same day the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The Center for Reproductive Rights, Morrison & Foerster LLP, and Lawyering Project represent the facilities in the Texas case. The Texas Attorney General’s Office represents the state.

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

The cases are Whole Woman’s Health v. Young, 2022 BL 223437, 5th Cir., No. 18-50730, 6/28/22; Memphis Ctr. for Reproductive Health v. Slatery, 6th Cir., No. 20-5969, unpublished 6/28/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Kimberly Wayne at