Vacating an earlier judgment by a three-judge panel, the full Sixth Circuit bench on Friday granted a stay of a Middle District of Tennessee judgment to the state of Tennessee defendants in a case that challenged an abortion waiting-period law, effectively allowing the law to be enforced while proceedings continue.
Bristol Regional Women’s Center P.C., Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, and physician Kimberly Looney originally filed suit against Tennessee officials, arguing that a Tennessee law requiring that patients seeking abortions meet with their physicians in person, who will provide information about the procedure “and its alternatives,” and then wait for 48 hours before having the procedure is unconstitutional. The district court sided with the plaintiffs, and the defendants appealed to the Sixth Circuit.
Ruling on a pair of motions, one for a stay and the other for expedited consideration, the majority simply stated that it would grant the requests by the defendants, led by Attorney General Herbert H. Slatery III, with no attached opinion nor concurrences. The en banc hearing came after the circuit court granted the defendant-appellants’ request for one, following a refusal to grant the stay by a Sixth Circuit panel.
Just as she did on the defendants’ first motion for a stay and on the motion for an en banc hearing, Judge Karen Nelson Moore led the dissenters, choosing brevity and simply citing “the reasons given by the panel” in the now-vacated decision for why she dissented. Five others joined her, with Judge Julia Smith Gibbons being the only one to author an opinion.
Gibbons noted that she would have rather not seen the en banc hearing granted to the defendants in the first place, saying that “doing so was unnecessary and damaged our traditional system of panel review.” But, since the en banc hearing had to happen, Gibbons said the question of whether to grant the stay was a “close” one, although she ultimately was not convinced that the defendants have a chance at succeeding on their case’s merits.
“Although there is a possibility—perhaps even a strong possibility—that the State will eventually convince me that the district court erred, it has not currently persuaded me that such a result is ‘likely,’ ” Gibbons wrote.
What was unpersuasive to Gibbons was the state’s so-called evidence that its waiting period law was constitutional by way of its similarity to the one upheld by Planned Parenthood v. Casey, elements of which the state has metabolized to plead its own case.
“Given Casey’s directive to consider the specific factual record in each case, the existence of similar laws elsewhere—many of which are untested in the federal appellate courts—does not convince me that Tennessee’s law is constitutional,” Gibbons said.
The Tennessee officials were appellants in another docket — that of the Supreme Court, where they petitioned in early April also for a stay of the same, now-vacated lower court judgment.
The Center for Reproductive Rights, Kramer Levin Naftalis & Frankel LLP, Barrett Johnston Martin & Garrison LLC, and the Planned Parenthood Federation of America represent the plaintiffs. The state defendants retain their own counsel.