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ACLJ Continues Defense of Life at Sixth Circuit as Federal Appellate Judge Slams "Decision To Strike Down the Anti-Discrimination Statute at the Altar of Abortion"


Edward White

October 1, 2021

3 min read

Pro Life



As I explained recently, the State of Tennessee passed a law limiting abortions after a baby’s heartbeat could be detected and prohibiting doctors from knowingly performing abortions that target unborn children because of their race, sex, or Down syndrome status (actual or perceived).

The law was enjoined by a federal trial judge, and a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, which governs the federal courts of Michigan, Ohio, Kentucky, and Tennessee, wrongly upheld the trial court’s injunction. As I previously noted:

While the two-judge majority determined that the law’s ban on the performance of abortions based on the unborn child’s race, sex, or Down syndrome status was unconstitutionally vague, Judge Thapar dissented. He noted that the majority misapplied the governing case law and usurped the democratic process of the State of Tennessee. He correctly explained that the majority’s “decision to strike down the anti-discrimination statute at the altar of abortion is wrong.”

Last week, Tennessee filed a petition for rehearing en banc, requesting that all active judges on the Sixth Circuit review the 2-to-1 ruling that barred the implementation of the Tennessee law.

Today, the American Center for Law and Justice (ACLJ) filed an unopposed motion (needed to be filed at the rehearing stage) for leave to file an amicus curiae brief in support of Tennessee. The brief was submitted on behalf of the ACLJ and more than 447,000 members of the ACLJ’s Committee To Defend Pro-Life Laws and Babies with Disabilities.

The ACLJ urged the Sixth Circuit to reconsider the 2-to-1 ruling. The ACLJ explained that the court should grant en banc review (1) to maintain uniformity of its case law since the Tennessee statute in question is virtually identical to an Ohio statute (also prohibiting Down-syndrome-selective abortions) that the Sixth Circuit ruled constitutional earlier this year (a case the ACLJ also filed an amicus brief in), and (2) to consider the impact the injunction against the Tennessee law will have on pre-born children, specifically those with Down syndrome, who face death through selective abortion despite the legal protection they have in every other aspect of their lives.

We explain that Tennessee should be allowed to protect all persons within its borders, born and pre-born, from disability-, race-, or gender-based discrimination. Permitting such discriminatory abortions revives discredited and dangerous eugenic practices, gravely damages the principle of equal treatment under the law, and undermines the value of human life. The law Tennessee passed to stop those abortion practices is constitutional and should be upheld.

The Sixth Circuit will decide whether to grant Tennessee’s petition for rehearing en banc in the coming weeks. If the court does not grant the petition, it is likely Tennessee will seek review by the Supreme Court of the United States.

The ACLJ will continue to monitor this case and stands ready to file additional briefs as it moves forward.

UPDATE 10.12.21: Today, the Sixth Circuit Court of Appeals granted our motion and has accepted our amicus brief filing as it considers this critical appeal. Today, the Sixth Circuit also ordered the plaintiffs to file a response to Tennessee's petition for rehearing en banc. Responses are generally not requested to petitions, which are usually denied outright, so this is positive news. 

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