Tennessee Fights to Reimpose Ban on Selective Abortions

CINCINNATI (CN) --- The constitutionality of two Tennessee abortion regulations was debated before an appeals panel on Thursday, as the state seeks to reimpose a ban on selective abortions and those performed after the detection of a fetal heartbeat.

The restrictions, passed as part of House Bill 2263 in June 2020 and signed into law a month later, impose criminal penalties on doctors who perform abortions when the woman seeks the procedure based on the unborn child's gender or race, or when the fetus has been diagnosed with Down syndrome. Physicians also faced Class C felony charges for performing abortions after the detection of a fetal heartbeat under the statute.

The Memphis Center for Reproductive Health and Planned Parenthood of Tennessee and North Mississippi, among others, sued Tennessee and won a preliminary injunction to prevent enforcement of the laws in July 2020.

U.S. District Judge William Campbell Jr., an appointee of Donald Trump, cited the 1992 U.S. Supreme Court decision in Planned Parenthood v. Casey and the decisions of several appeals courts across the country in his opinion, ruling that states cannot ban pre-viability abortions.

Campbell struck down the portion of the law regarding abortions in cases where the woman's decision is based one of several characteristics of the unborn child. He said the language regarding a physician's knowledge of the reasoning behind a woman's choice is "imprecise," and ruled that "when a law threatens criminal sanctions, such vague provisions and potential varied interpretations cannot stand."

The district judge also referenced an Ohio law that banned abortions in cases where the woman knows her unborn child has Down syndrome. While a federal judge initially struck it down as unconstitutional, the full Sixth Circuit recently reinstated the ban in Preterm-Cleveland v. McCloud.

In its brief to the Cincinnati-based appeals court, Tennessee called the lower court's analysis "deeply flawed," and claimed the provisions act to prevent abortion from "becoming a tool of modern-day eugenics."

"By prohibiting physicians from knowingly participating in eugenic abortions," it said, "the law directly furthers the state's interests in protecting unborn life, promoting human dignity, safeguarding the integrity of the medical profession, and preventing discrimination."

The Volunteer State accused the lower court of concocting hypothetical scenarios to render the antidiscrimination portion of the law void for vagueness, arguing the "speculative danger of arbitrary enforcement" cannot be used to strike down a law as unconstitutional.

Conversely, the abortion providers commended the district judge on his decision, and claimed in their brief to the Sixth Circuit that H.B. 2263 is an attempt to criminalize nearly all abortions in Tennessee. They accused the state of using "rhetorical gymnastics" to defend the law, and reminded the appeals court that every ban on pre-viability abortions has been struck down as unconstitutional by various courts throughout the country.

Attorney Sarah Campbell argued on behalf of Tennessee on Thursday and told the three-judge panel the court's decision in Preterm-Cleveland "forecloses plaintiffs' argument."

Campbell said the district court "egregiously misapplied the void-for-vagueness doctrine" when it determined the terms "knowledge" and "because of" were not properly defined in the statute, and said the meaning of those words are well-settled in Tennessee law.

U.S. Circuit Judge Karen Moore, an appointee of Bill Clinton, asked why a ban on abortions after the detection of a heartbeat does not constitute a substantial burden on women seeking abortions.

The state's attorney cited a "growing consensus" in the medical community that unborn children can begin to sense and experience pain at 15 weeks, and pointed out that over 90% of abortions performed in Tennessee are done before that point in a fetus's development.

Attorney Rabia Muqaddam argued on behalf of the abortion providers and told the panel "decades of Supreme Court precedent" requires it to uphold the lower court's decision. She called the Tennessee law unique because it fails to provide doctors with clearly defined parameters to avoid criminal prosecution.

"Under the language of the statute," the attorney said, "a physician could be prosecuted under a wide array of circumstances."

Muqaddam disputed her colleague's statement regarding fetal pain and told the judges her clients provided rebuttal testimony before the lower court. In her conclusion, she reiterated that no state interest can justify a ban on pre-viability abortions.

Moore was joined on the panel by Senior U.S. Circuit Judge Martha Daughtrey, also a Clinton appointee, and U.S. Circuit Judge Amul Thapar, a Trump appointee. No timetable has been set for the court's decision.

The Sixth Circuit has grappled with numerous abortion restrictions from various states over the past several years, and Thursday's case won't be the last time Tennessee's abortion laws are debated before the court.

The court recently granted the state's motion for an initial en banc hearing of Planned Parenthood's challenge to a law that requires a 48-hour waiting period before a woman can get an abortion, although those arguments have not yet been scheduled.

Although a federal judge temporarily halted enforcement of the law, a recent order from the appeals court stayed that injunction and expedited scheduling for the arguments.

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