Bench Memos

Law & the Courts

Powerful Opinion by Judge Thapar on Illegitimacy and Unworkability of Roe/Casey Regime

On Friday, a Sixth Circuit panel majority ruled (in Memphis Center for Reproductive Health v. Slatery) that two provisions of Tennessee abortion law are constitutionally impermissible. Specifically, the majority (opinion by Judge Martha Craig Daughtrey, joined by fellow Clinton appointee Karen Nelson Moore) ruled (1) that a ban on post-heartbeat abortions imposes an “undue burden” before viability under Planned Parenthood v. Casey, and (2) that prohibiting abortion when the abortionist “knows” that the pregnant woman “is seeking the abortion because of the sex of the unborn child … because of the race of the unborn child … [or] because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child” is impermissibly vague.

Writing separately, Judge Amul Thapar explained that Supreme Court precedent compelled him to concur in the first ruling but that the majority’s second ruling turned on “[l]aw professor hypotheticals and dreamed-up scenarios” that defy precedent and that, if applied elsewhere, would mean that “no statute could pass constitutional muster.” (See pp. 37-38, 63-70.)

More notably, while explaining that he was bound to apply the Court’s Roe/Casey regime, Thapar also powerfully expounded how the Roe/Casey framework “conflict[s] with the original understanding of the Constitution,” “cannot be justified under any modern approach to constitutional interpretation” and “has proven unworkable in practice.”

Among other things: The Roe majority “rewrote history” in trying to claim that a right to abortion has a strong historical foundation. (Pp. 42-50.) The living-constitutionalist argument for abortion ignores that abortion “remains one of the most hotly contested issues in American life,” that “‘the United States is an outlier within the international community’ when it comes to abortion,” and that “the steady march of science undermines” Roe’s agnosticism about when the life of a human being begins and Casey’s arbitrary adoption of a viability line. (Pp. 50-55.) And Casey’s “undue burden” test “has proved inherently resistant to neutral and principled application.” (Pp. 55-62.)

Here are some excerpts from Thapar’s opinion on the last point:

What legal rules and doctrines have suffered at the hand of abortion jurisprudence? Statutory interpretation, the rules of civil procedure, the standards for appellate review of legislative factfinding, and the First Amendment to name a few. [Citations omitted.]

Rather than mend the Nation’s fractures, the Casey regime’s lack of concrete guidance has generated decades of bitter litigation and widening circuit splits. Consider, for instance, the circuit split over parental notification requirements. Compare Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc), with Planned Parenthood v. Adams, 937 F.3d 973, 985–90 (7th Cir. 2019), and Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995). Or the split about laws requiring abortion providers to make certain disclosures. Compare EMW Women’s Surgical Ctr. v. Beshear, 920 F.3d 421, 430–32 (6th Cir. 2019), and Planned Parenthood v. Rounds, 686 F.3d 889, 893–906 (8th Cir. 2012), with Stuart v. Camnitz, 774 F.3d 238, 244–50 (4th Cir. 2014). Another divide has emerged over nondiscrimination provisions such as section 217. Compare Preterm[-Cleveland v. McCloud, 994 F.3d [512,] 535 [(6th Cir. 2021), with Planned Parenthood v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300, 307–10 (7th Cir. 2018). Even the question of whether states may prohibit certain types of dilation & extraction procedures—namely, the dismemberment of a still-living unborn child—has produced a circuit split. Compare Whole Woman’s Health v. Paxton, No. 17-51060, 2021 WL 3661318, at *1 (5th Cir. Aug. 18, 2021) (en banc), with W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), and EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 806–07 (6th Cir. 2020). These conflicts, and others like them, highlight that an undue burden is in the eye of the beholder.

Addendum: Carrie Severino provides some other choice excerpts in this post of hers.

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