Tennessee Is Now Free To Enforce Its Abortion Laws
In 2020, 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.
Members of the abortion industry (including Planned Parenthood) sued Tennessee. A federal trial judge granted an injunction against the law, and a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, which governs the federal courts of Michigan, Ohio, Kentucky, and Tennessee, upheld the trial court’s injunction.
This past December, a majority of all active judges of the Sixth Circuit, known as the en banc panel, agreed to rehear the case and later vacated the three-judge panel’s decision and lifted the injunction that allowed abortions of children because of their race, sex, or Down syndrome status. The trial court’s injunction that prohibited enforcement of the heartbeat provision of the law, however, remained.
At the three-judge panel stage of the case, and at the en banc stage, the American Center for Law and Justice (ACLJ) filed amicus curiae (friend-of-the court) briefs in support of the statute, here and here. We argued that Tennessee should be permitted to prohibit selective abortion once there is evidence of a fetal heartbeat, or in cases where an abortion is sought for discriminatory reasons, such as for the purpose of gender selection or in the case of a disability diagnosis. 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 case remained pending at the Sixth Circuit while the United States Supreme Court considered the Dobbs v. Jackson Women’s Health Organization case. In light of the recent Dobbs decision, which explained that there is no federal right to abortion, on June 28th the en banc Sixth Circuit vacated the trial court’s injunction that allowed abortion after the detection of an unborn child’s heartbeat.
With this recent Sixth Circuit decision, both parts of the Tennessee abortion law will now be in full effect until Tennessee’s “trigger law” is activated in roughly thirty days. The issuance of the Dobbs decision is what triggered that law. The “trigger law” will prohibit abortion in Tennessee after fertilization unless the abortion is necessary to prevent the death of the mother or prevent serious risk of substantial and irreversible impairment of a major bodily function of the mother.
With the issuance of the Dobbs decision, the authority to regulate abortion has returned to the States, where the authority rested before Roe v. Wade. Tennessee has chosen to outlaw abortion unless necessary to protect the life or significant health of the mother. It can now enforce its laws in light of Dobbs and the recent Sixth Circuit ruling.