In addition to my summary of Judge Batchelder’s excellent majority opinion in today’s en banc Sixth Circuit ruling in Pre-Term Cleveland v. McCloud, I’ll highlight the three concurring opinions (each by a judge who fully joined Batchelder’s opinion).

Judge Jeffrey S. Sutton observes that the case “is Exhibit A in a proof that federal judicial authority over the issue has not been good for the federal courts or for increased stability over this difficult area of law”:

Assuming still more judicial responsibility over so much abortion policy comes with terrain-altering costs to the judiciary. An independent judiciary has always been crucial to America’s constitutional order. But a politicized judiciary cannot be an independent judiciary. The more the judicial branch enumerates our country’s policies in areas of unenumerated liberty rights over which the people have legitimate disagreements, the more it becomes a new source of power—an allocation of responsibility that comes with the worst features of gerrymandering: a warping of democracy and a perceived manipulation of the decision-making process. Any effort to insulate such power from the political fray is not likely to last long or end well. Far better, in my view, to give States like Ohio more latitude, not less, to weigh and decide complex questions about abortion policy.

As part of his explanation why he does not find this case “difficult as a matter of federal constitutional law,” Sutton notes that the federal Constitution “permits States to convey their interest in the dignity of all human beings in all manner of ways,” including by “seek[ing] to avoid the stigma that comes with publicly acknowledged discrimination against the born and the unborn based on disability, sex, and race.” (Disclosure: Sutton is a longtime friend of mine, and we co-edited The Essential Scalia.)

Judge Richard Griffin echoes Justice Clarence Thomas’s concurring opinion in Box v. Planned Parenthood, in which Thomas argued that Indiana’s law barring abortions sought solely because of the child’s race, sex, diagnosis of Down syndrome, or non-lethal disabilities “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” While the eugenics movement has “lost its popularity,” Griffin notes, “the selective abortion of unborn babies who are deemed ‘unfit’ or ‘undesirable’ is becoming increasingly common.”

Judge John Bush argues that in the absence of any Supreme Court holding that decides the question, a lower court should not treat Supreme Court dictum as dispositive and should be wary of extending dubious precedent. Instead, the lower court should look to the Constitution’s original meaning. He explores the original meaning of the Fourteenth Amendment and determines that it would not have limited a legislature’s authority to bar eugenic abortions.