There was a flurry of significant and welcome federal appellate actions late yesterday on matters I’ve been following. Very briefly:
1. On Tennessee and Kentucky laws that prohibit healthcare providers from providing certain drugs and procedures (e.g., cross-sex hormones) as treatment for minors with gender dysphoria: Back in July, a divided Sixth Circuit panel, acting on an emergency motion filed by the state of Tennessee, issued an excellent ruling that allowed Tennessee’s law to go into effect pending its consideration of Tennessee’s appeal of an injunction. A similar Kentucky law was also allowed to go into effect while the state of Kentucky challenged an injunction order.
In its joint ruling in both cases yesterday (in L.W. v. Skrmetti), the same Sixth Circuit panel majority (again in an opinion by Chief Judge Jeffrey Sutton) ruled in favor of Tennessee and Kentucky on their appeals and vacated the injunction orders.
2. Back in August 2022, a federal district judge in Idaho ruled that Idaho’s abortion law is in part preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA). In a unanimous order yesterday (in United States v. Idaho), a Ninth Circuit panel ruled that Idaho’s law is not preempted by EMTALA and therefore granted the Idaho legislature’s motion to stay the district court’s injunction during the appeal process. (Under the same reasoning, Idaho should of course prevail on the appeal.)
3. As expected, the Fifth Circuit has granted rehearing en banc of the wacky panel decision in August (in Hopkins v. Hosemann) that held that a Mississippi law that disenfranchises individuals who have been convicted of a felony violates the Eighth Amendment’s bar on cruel and unusual punishments.