Full Federal Appeals Court To Rehear Major Abortion Case

On December 1, 2021, the United States Court of Appeals for the Sixth Circuit issued an order granting the request that it rehear the challenge to a Tennessee abortion law en banc. In other words, all active judges of the court will consider the case.

The Tennessee law at issue limits abortions after a baby’s heartbeat can be detected and prohibits doctors from knowingly performing abortions that target unborn children because of their race, sex, or Down syndrome status (actual or perceived).

Planned Parenthood and others challenged the law, convincing a federal trial judge to enjoin it. A divided three-judge panel of the Sixth Circuit, which governs the federal courts of Michigan, Ohio, Kentucky, and Tennessee, wrongly upheld the trial court’s injunction in a 2-to-1 decision. The American Center for Law and Justice (ACLJ) had filed an amicus curiae brief in support of the Tennessee law.

Tennessee subsequently filed a petition for rehearing en banc, requesting that all active judges on the Sixth Circuit review the ruling that stopped the implementation of the Tennessee law.

The ACLJ filed another amicus curiae brief in support of Tennessee and urged the Sixth Circuit to reconsider the three-judge panel’s ruling. The brief was submitted on behalf of the ACLJ and the more than 400,000 members of the ACLJ’s Committee To Defend Pro-Life Laws and Babies With Disabilities.

We explained in the brief 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, 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 further explained 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 Sixth Circuit agreed with Tennessee’s and our position and granted the request to rehear the case en banc, vacating the three-judge panel’s decision in the process. The Sixth Circuit will hold oral argument in the case on March 9, 2022, and will issue its decision thereafter. The amicus curiae brief we filed when the three-judge panel considered the case will be part of the record on appeal when the en banc court rehears the case.

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