6th Circuit Will Hear En Banc Tennessee Abortion Waiting-Period Case

The full Sixth Circuit bench will hear a case concerning Tennessee’s abortion waiting-period law after the defendants in the suit filed a petition for a hearing en banc — although one dissenting judge will do so begrudgingly.

The suit arose from abortion providers and other parties challenging a Tennesee law that required a 48-hour waiting period between a patient deciding to get an abortion and getting the procedure. The plaintiffs reported that the district court agreed the law is unconstitutional, prompting an appeal by state officials defending the law, which a three-judge Sixth Circuit panel denied. The request for the full circuit bench to rehear the case was granted on its merits. 

The majority filed its order granting the petition brief on Friday, with no attached opinion to explain its reasoning, followed by Circuit Judge Karen Nelson Moore’s three-and-a-half-page dissent.

Nelson Moore argued that “in virtually every other case that comes before this court,” an en banc hearing is not warranted, claiming that the Federal Rules of Appellate Procedure render en banc hearings “not favored” and reserved for “extraordinary” circumstances.

“By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases,” the dissenter wrote.

The appellants had argued that their case was “exceptional” in that it begged the question of “whether a three-judge panel may functionally overrule Supreme Court and Circuit precedent,” according to the petition. Nelson Moore said she disagrees with this framing, calling it “alarmist.”

“This case presents the question of the constitutionality of a single state’s abortion waiting-period law,” Nelson Moore wrote. “It is no more or less ‘exceptional’ than other abortion laws that have proceeded through this court upon consideration of the merits by a three-judge panel before being considered for en banc review.”

Nelson Moore claimed that a dissenting judge on the panel that denied the earlier appeal for a stay — which included Nelson Moore — had urged the appellants to petition for an en banc hearing, contributing to a “game of procedural hopscotch” further endorsed by the majority in this action.

“Ultimately, what appears to be ‘exceptional’ … about this case is that it fell to the wrong panel,” Nelson Moore concluded. “Encouraged by a member of this court in the decision on the stay motion, Appellants have unabashedly sought to avoid panel review of the merits in a case involving a controversial issue because they dislike its panel’s composition and the panel’s resolution of the stay motion.”

This action comes while an application for a stay of the district decision that resulted in the state’s enjoinment from enforcing its waiting-period law is pending in the Supreme Court, as Law Street Media reported, requesting a response by the plaintiffs by Thursday.