The 6th U.S. Circuit Court of Appeals this week reversed an earlier order issued by three of its own members and lifted an injunction against the operation of a Tennessee ban on abortions performed because of a prenatal diagnosis of Down syndrome, or because of the race or sex of the baby – also known as “reason bans.”
Tennessee is widely considered to be a pro-life, conservative state. So when the Tennessee House of Representatives and Senate approved a ban on such abortions in June 2020 by large margins, no one was surprised to see Governor Bill Lee sign it into law. The law also included a ban on abortion once a fetal heartbeat can be detected.
However, the law was immediately challenged in court by abortion sellers in the state and a federal district court blocked the law from taking effect by issuing an injunction against state officials charged with enforcing it.
When the state appealed to the 6th Circuit, however, things got complicated. In November 2020 a three-judge panel reversed the injunction as to the reason bans but kept it in place as to the heartbeat abortion provision. Then, almost a year later, in September 2021 another three-judge panel reversed the previous panel decision and reinstated the injunction against the reason bans.
Confused yet? It gets even more interesting. As we know, the Texas Heartbeat Act was making several trips up to the U.S. Supreme Court beginning in September 2021 at the same time as the Tennessee law was working its way through the 6th Circuit. In December, the entire complement of 6th Circuit judges – 17 in all – known as an “en banc” court, voted to vacate (i.e., erase) the panel’s decision against the heartbeat bill and reschedule oral arguments at some future date.
The en banc court didn’t mention anything in its December order about the Tennessee reason bans. Fast forward to this week, however, and the 6th Circuit, en banc again, issued its order “staying” the injunction against that portion of the Tennessee law. Six of the judges dissented, joining an opinion by Judge Karen Nelson Moore.
What happens next? The en banc court won’t hear arguments in the case until after the Supreme Court renders its decision in the Mississippi 15-week abortion case, Dobbs v. Jackson Women’s Health Organization, which potentially could result in the overturning of Roe v. Wade.
After all the legal dust cleared this week, Tennessee’s law prohibiting abortions for reasons of race, sex, or diagnosis of Down syndrome will be in effect for the time being. And the ultimate fate of the Tennessee law – both the reason bans and the heartbeat abortion ban – could depend on what the Supreme Court says when it issues its Dobbs decision, expected by the end of June.
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