By Matt Hadro
Washington D.C., Sep 10, 2021 / 16:00 pm
A federal appeals court ruled against Tennessee’s abortion restrictions on Friday, nine days after another pro-life “heartbeat” law went into effect in Texas.
In July 2020, Tennessee enacted a law restricting abortions at several stages in pregnancy, including abortions conducted after detection of a fetal heartbeat which can occur as early as six weeks post gestation.
The law also prohibited abortions conducted because of the race or sex of the baby, or because of a Down syndrome diagnosis.
On Friday, a three-judge panel of the Sixth Circuit ruled against both provisions, upholding a lower court’s ruling that halted them from going into effect.
Judge Martha Craig Daughtrey, authoring the majority opinion, wrote that “access to pre-viability abortion is a constitutionally protected right.” Daughtrey noted that “the law remains clear that if a regulation is a substantial obstacle to a woman seeking an abortion, it is invalid.”
The pro-life group Susan B. Anthony List stated on Twitter that the ruling was "disappointing" and that the state's pro-life provisions were "commonsense."
"However we're confident that soon SCOTUS will once again allow states to protect life," the group stated.
The ruling comes as a Texas law restricting most abortions in the state went into effect on Sept. 1. Later this fall, the Supreme Court will also hear oral arguments in the case of a Mississippi law prohibiting most abortions after 15 weeks.
Texas’ “heartbeat” law prohibits most abortions after the detection of a fetal heartbeat, with exceptions for medical emergencies. That law is unique in that it is enforced through private party lawsuits and not by the state.
On Sept. 1, the Supreme Court rejected a challenge to the law hours after it had already gone into effect.
National pro-abortion groups and the Biden administration vowed to maintain abortions in Texas, as Biden said the law “blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.” The Justice Department on Thursday sued Texas officials, as well as any private parties bringing lawsuits under the “heartbeat” law.
Judge Daughtrey on Friday noted the recent increase in state abortion restrictions, saying that “this development is not a signal to the courts to change course. It is, in fact, just the opposite. The judiciary exists as a check on majoritarian rule.”
“The State may not use the courts to ‘enforce [their moral principles] on the whole society through operation of the criminal law,’” Judge Daughtrey wrote.
However, Judge Amul Thapar called for the Supreme Court to reconsider Roe v. Wade, the 1973 decision that legalized abortion nationwide, as well as Planned Parenthood v. Casey, the 1992 decision that upheld Roe. He concurred in part and dissented in part from the majority opinion.
“None of these timing restrictions are permissible under the Roe/Casey framework,” he said of the Tennessee law. “But Roe and Casey are wrong as a matter of constitutional text, structure, and history.”
“Only seven other countries permit abortions after 20 weeks. That list includes China and North Korea—not exactly countries to emulate,” he wrote.
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Regarding the law’s ban on abortions conducted for the “reason” of race, sex, or diagnosis, he said he would have upheld that provision.
“On this point, the majority stands alone,” he said. “And its decision to strike down the anti-discrimination statute at the altar of abortion is wrong.”
