A provision of Tennessee law enacted earlier this year bars any person from performing an abortion if that person knows that the mother is seeking the abortion because of the sex or race of her unborn child or because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in her unborn child. In an order on Friday (in Memphis Center for Reproductive Health v. Slatery), a divided panel of the Sixth Circuit granted the state of Tennessee’s motion for a stay pending appeal of a district-court order that blocked Tennessee from enforcing this provision.
The en banc Sixth Circuit (in Preterm Cleveland v. Himes) is currently deciding the fate of an Ohio law that similarly bars a person from performing an abortion if that person knows that the mother is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome. The case was argued in March, so a ruling could come any time.
Judge Amul Thapar was part of the panel majority in the Tennessee case. As a judge in regular active service, he is also taking part in the en banc decision on the Ohio law. (The other judge in the Tennessee majority is a senior judge.) The fact that the panel majority determined that Tennessee is likely to prevail in its case is a strong signal that the en banc Sixth Circuit will rule in favor of the Ohio law.