Major Pro-Life Victory: Federal Appeals Court Allows Protection of Unborn Babies With Disabilities To Go Into Effect as It Considers Key Abortion Case

This week, the United States Court of Appeals for the Sixth Circuit issued an order allowing the enforcement of what is known as the Antidiscrimination Provision of Tennessee’s 2020 abortion law. This provision prohibits doctors from knowingly performing abortions that target unborn children because of their race, sex, or Down syndrome status (actual or perceived).

Soon after the law was enacted, Planned Parenthood and others challenged it in federal court and convinced a trial court to enter a preliminary injunction to prevent the law, including the Antidiscrimination Provision, from going into effect.

Tennessee appealed that order to the Sixth Circuit. The American Center for Law and Justice (ACLJ) filed an amicus curiae (friend-of-the-court) brief urging the Sixth Circuit to overturn the preliminary injunction. This past September, a three-judge panel of the court wrongly upheld the injunction in a 2-to-1 decision.

Tennessee then requested that all active judges of the Sixth Circuit (the en banc court) rehear the case. The ACLJ, on behalf of itself and the more than 400,000 members of the ACLJ’s Committee To Defend Pro-Life Laws and Babies With Disabilities, filed another amicus curiae brief urging en banc review.

Last December, the Sixth Circuit agreed to rehear the case en banc and vacated the three-judge panel’s decision in the process. Tennessee immediately asked the en banc court to lift the trial court’s preliminary injunction that prevented the Antidiscrimination Provision from going into effect.

As noted above, this week the en banc court granted Tennessee’s request and allowed the Antidiscrimination Provision to go into effect while the case proceeds to a final decision. In other words, while the Sixth Circuit considers this case, doctors in Tennessee are now prohibited from knowingly performing abortions that target unborn children because of their race, sex, or Down syndrome status.

This is a good ruling by the en banc court, and we are hopeful its final decision upholds the Tennessee law. First, the Antidiscrimination Provision is similar to an Ohio statute (also prohibiting Down-syndrome-selective abortions) that the Sixth Court ruled constitutional last year. Second, Tennessee (as with any state) 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, harms the principle of equal treatment under the law, and undermines the value of human life.

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