On Friday, the Sixth Circuit granted a petition for initial hearing en banc in a case (Bristol v. Slatery) challenging a Tennessee law, enacted in 2015, that provides for a 48-hour waiting period to ensure informed consent on abortion. The grant means that Tennessee’s appeal of the adverse district-court ruling will be heard first not by a three-judge panel (as is the usual course) but instead by the full court. Judge Karen Nelson Moore, joined by her five liberal colleagues, dissented.
Moore—along with Judge Helene White and Judge Amul Thapar—was on the three-judge panel that was initially assigned the appeal. In February, Moore and White combined to decline Tennessee’s motion for a stay pending appeal. Thapar vigorously dissented. He forcefully argued that “no federal appellate court has successfully struck down an abortion waiting period” since Planned Parenthood v. Casey was decided in 1992. He complained that the panel majority “ignores Supreme Court and Sixth Circuit precedent, as well as the correct legal standard,” and he called for “immediate correction [of the majority’s ruling] either by our court or a higher one.”
It’s difficult to read the Sixth Circuit’s grant of initial hearing en banc as anything other than a (well-deserved) smackdown of Moore. The en banc majority sure seems to be saying that she and White have shown that they can’t be trusted to decide the appeal in accord with governing law.
As Josh Blackman explains, Moore’s protests against resort to initial hearing en banc are undercut by her own support for that procedure in the highly contested litigation over the University of Michigan’s use of racial preferences in admissions.
I’ll also point out that in another abortion-related case—a challenge to the Trump administration’s Title X rules—the liberal majority of the Fourth Circuit last year used the same mechanism of a grant of initial hearing en banc to take the matter away from the assigned panel.