The U.S. Court of Appeals for the Sixth Circuit has granted Tennessee’s request for the full court to hear arguments in its appeal regarding a 2015 informed consent law requiring a woman to wait 48 hours prior to having an abortion.
A federal district court in Tennessee struck down the law in October, ruling it was unconstitutional, and permanently banned its enforcement. The state, however, appealed to the Sixth Circuit which, in a surprisingly and extraordinarily rare move, granted Tennessee’s motion to have initial arguments heard in front of the en banc court, instead of a three-judge panel.
Judge Karen Nelson Moore, a Bill Clinton appointee, joined by five liberal colleagues, dissented to the hearing of the initial arguments before the full court.
Moore was one of the judges initially assigned to a three-judge panel for the hearing of the appeal. Judge Helene White, who was originally a Clinton appointee, but ultimately nominated by George W. Bush when her initial nomination expired, was also assigned to the three-judge panel, as was Judge Amul Thapar, a Donald Trump appointee who many consider a potential Supreme Court candidate should Republicans retake the White House.
In February, when Moore and White joined to deny Tennessee’s motion for a stay, pending appeal, Thapar strongly dissented, arguing “no federal appellate court has successfully struck down an abortion waiting period” since the Supreme Court ruled in Planned Parenthood v. Casey in 1992.
Thapar continued, saying “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,” he asserted.
Will Brewer, legal counsel and legislative liaison for Tennessee Right to Life, said when the district court struck down the law that it “was drafted in consultation with nationally renowned legal scholars in order to mirror similar laws across the country.”
Meanwhile, Tennessee Attorney General Herbert Slatery asked the U.S. Supreme Court to place a hold on the district court’s permanent ban on the waiting period law, as similar laws in other states have been in effect for years.
Justice Brett Kavanaugh set a deadline date of April 15 for the three abortion providers who filed the lawsuit against the state to respond to Tennessee’s emergency request to lift the permanent injunction.
This is the second major abortion-case development out of the Sixth Circuit this week, as the Cincinnati-based appeals court also released an en banc decision in Preterm Cleveland v. McCloud, upholding by a 9-7 vote an Ohio law banning abortions sought because the baby has Down syndrome.
The case is Bristol Regional Women’s Center, P.C. v. Slatery, No. 20-6267 in U.S. Court of Appeals for the Sixth Circuit.
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