I’m pleased to see that the Sixth Circuit last week, on the same day as oral argument in Dobbs, granted en banc review in Memphis Center for Reproductive Health v. Slatery.
The case involves a challenge by abortion providers to two provisions of Tennessee law. One provision (section 216) bars abortion, except in the event of a medical emergency, at cascading intervals—detection of heartbeat, 8 weeks gestational age, 10 weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22 weeks, 23 weeks, and 24 weeks—and provides that any interval determined to be unenforceable shall be severed from the law. The second provision (section 217) forbids anyone from performing an abortion if that person “knows that the woman is seeking the abortion because of” the sex or race of the unborn child or “because of a prenatal diagnosis … indicating Down syndrome.”
The Sixth Circuit panel opinion in September was unanimous that section 216 was barred by Roe v. Wade and Planned Parenthood v. Casey, even as Judge Amul Thapar wrote a powerful opinion explaining how wrong those precedents are. The panel divided on the anti-discrimination provision: the majority ruled that section 217 is unenforceable, while Judge Thapar dissented, pointing out (among other things) that earlier in the year the en banc Sixth Circuit had upheld “Ohio’s nearly identical anti-discrimination law.” (As Thapar points out, “Tennessee added race and gender to the protected class,” but those additions have nothing to do with the majority’s grounds of objection.)
It’s a safe bet that the Sixth Circuit granted en banc review primarily for the purpose of revisiting the section 217 ruling but realized, now that Dobbs is pending in the Supreme Court, that it ought to hold the section 216 ruling for possible re-examination as well. My guess is that the Sixth Circuit will not act on the case until the Court rules in Dobbs. Section 216 will be unenforceable in the meantime. Section 217, as I understand it, remains in effect, as a Sixth Circuit motions panel issued a stay pending appeal of the district court’s preliminary injunction as to that provision. (I’m told that Tennessee, evidently eager to have crystal clarity on the matter, has just asked the Sixth Circuit for an identical stay.)
The cascading provisions of section 216 also highlight what a foolish exercise it would be for the Court in Dobbs to say that Mississippi’s 15-week bar is okay without being able to draw a principled line that would substitute for the arbitrary line of viability. Such a delaying action would just ensure that cases like Tennessee’s would move quickly through the pipeline to the Court. Once again, there is no coherent middle ground in Dobbs, and the only legitimate option is for the Court to overturn Roe and Casey.