Sixth Circuit Grants Tennessee’s Request for En Banc Hearing on Abortion Law

In a rare move that led one judge to question the court’s “reputation for impartiality,” the Sixth Circuit on Friday decided to hear initial arguments regarding Tennessee’s 48-hour waiting period abortion law — which was struck down by a federal judge — in front of the entire court.

(AP Photo/Rick Bowmer)

CINCINNATI (CN) — Arguments in the appeal regarding a Tennessee law that requires a woman seeking an abortion to wait 48 hours before the procedure will be heard in front of the full Sixth Circuit, according to an order released on Friday by the court.

The 2015 law was struck down after a bench trial in a 136-page ruling by a federal judge in October 2020 following a challenge by the state’s abortion providers.

U.S. District Judge Bernard Friedman, a Reagan appointee and visiting judge sitting in the Middle District of Tennessee, called the two-day waiting period in the law “gratuitously demeaning,” and found it unconstitutional.

The state of Tennessee appealed to the Sixth Circuit, who in a surprising move granted its motion to have initial arguments in the case heard by the entirety of the court.

Traditionally, arguments are heard by a three-judge panel that decides the case, at which point the losing party is able to petition for a rehearing in front of the en banc court.

Friday’s order was sparse, and stated simply that the petition for an en banc hearing was “circulated to all active judges of this court,” with “a majority of judges of this court having favored the suggestion.”

Not so subtle, however, was the dissent of U.S. Circuit Judge Karen Moore, a Bill Clinton appointee who objected to the disruption of the court’s traditional processes.

Moore cited statutory law, the Federal Rules of Appellate Procedure, and the Sixth Circuit’s “internal operating procedures” as imperatives that almost always require cases to be heard initially in front of a three-judge panel.

“It also comes from common sense,” she said. “‘Panel decisions refine, narrow, and focus issues before the court.’ Even with a panel decision to work from, hearing a case en banc is ‘a rarely satisfying, often unproductive, always inefficient process.'”

Moore refused to mince words in her dissent, and said her colleagues’ decision “lacks a principled basis and tarnishes this court’s reputation for impartiality and independence.”

Moore sat on the panel that denied Tennessee’s petition for a stay of the lower court’s ruling pending the outcome of the appeal, and questioned the actions of another judge on that panel, U.S. Circuit Judge Amul Thapar, a Trump appointee.

“Judge Thapar disagreed [with the panel’s decision],” she said. “So vehemently did he disagree that he called for ‘immediate correction’ of the stay order, urging appellants to seek initial hearing en banc.

“Appellants readily obliged, filing a petition for initial hearing en banc. By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary — and extraordinarily disfavored — procedure in ideologically charged cases.”

Moore opined the vote was the outcome of a prediction by the majority “that the panel would reach a conclusion on the merits of the case that a majority of the en banc court disagrees with. That prediction is a dangerous one.”

In a scathing conclusion, she lamented the court’s decision to “wield [its] en banc authority so indiscriminately,” and pointed out that any perceived error in a panel’s decision is meant “to be cured through rehearing en banc. Alas, it seems to me that we have moved on to sorrier times.”

“Appellants,” she continued, “have unabashedly sought to avoid panel review of the merits in a case involving a controversial issue because they dislike its panel’s composition and the panel’s resolution of the stay motion. In endorsing this game of procedural hopscotch, a majority of the en banc court has embarked on an unsettling course.”

The arguments in the case have yet to be scheduled, and Friday’s decision came on the heels of several briefs filed by amicus parties, including a group of medical professionals in support of Tennessee’s abortion providers, as well as the attorney generals of several other states.

The brief filed by healthcare providers pointed out the law would compound an already undue burden on women seeking an abortion in the state, especially considering only four cities have the facilities required to provide abortion care.

The medical providers argued the law will increase costs and the potential likelihood of complications for women seeking abortions, and that the waiting period “serves only to undermine patient autonomy and force physicians to question, or appear to question, their patients’ well-informed decisions.”

The states of Illinois, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia also filed a brief in support of the abortion providers.

The brief said the waiting period does not ensure informed consent, as Tennessee claims, but rather “increases the costs of accessing abortion … imposes serious burdens on women seeking to terminate pregnancies … and, in some cases, eliminat[es] a woman’s ability to exercise her constitutional right at all.”

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