By Tom Strode
The full Sixth Circuit Court of Appeals in Cincinnati issued an order that granted the state’s motion that it be able to enforce once again a portion of a 2020 pro-life law that bars abortion when a doctor knows the request for the procedure is driven by the unborn child’s ethnicity, sex or a diagnosis of Down syndrome. Eleven of the “en banc,” or full, court’s 17 judges agreed in the order.
The Sixth Circuit decided the “reasons ban,” as it is known, will remain in effect until the U.S. Supreme Court issues its ruling on Mississippi’s ban on abortion after 15 weeks’ gestation. The high court is expected to issue an opinion in the case, Dobbs v. Jackson Women’s Health Organization, by this summer.
Brent Leatherwood, acting president of the Ethics & Religious Liberty Commission (ERLC), told Baptist Press, “Christians understand the state has a responsibility to protect those under its authority, especially ones who are marginalized or have no voice. Yet, for too long, our basic constitutional protections have not been extended to our smallest neighbors – the preborn.
“Thanks to this decision, Tennessee is one step closer to erasing this inconsistency so that no one, including the most vulnerable, will be denied the right to life, liberty and the pursuit of happiness,” he said in written comments.
Randy C. Davis, president and executive director of the Tennessee Baptist Mission Board, praised the decision.
”Tennessee has made enormous strides over the last decade to protect the unborn. I appreciate every move made to greatly reduce the number of abortions performed in what was becoming the abortion capital of the south,” Davis said.
“This court decision is further affirmation Tennessee is on the right side of life,” he added.
Stacy Dunn, president of Tennessee Right to Life, also applauded the appeals court for “affirming the voice of the people of Tennessee.”
“This provision, in particular, defends the most vulnerable among us and upholds the virtue that all lives matter regardless of condition or color, and it’s time this state and all states take an interest in protecting those lives,” Dunn said in a written statement.
The “reasons ban” was part of a pro-life package Gov. Bill Lee presented to the legislature and signed into law in 2020. It also included:
- A prohibition on abortion when a fetal heartbeat can be detected, which can be as early as six weeks.
- A requirement of an ultrasound test and information on the unborn child’s gestational age for a woman before she undergoes an abortion.
- A ban on abortion for a juvenile in custody of the Tennessee Department of Children’s Services.
An injunction preventing enforcement of the fetal heartbeat ban remains in effect.
A federal judge quickly blocked enforcement of the “reasons ban” for vagueness and the fetal heartbeat provision as an unconstitutional, pre-viability prohibition after enactment of the law. In November 2020, a divided, three-judge panel of the Sixth Circuit allowed the “reasons ban” to be enforced at the state’s request while the case worked its way through the courts. A Sixth Circuit panel, however, reversed that decision in another 2-1 ruling in September 2021.
While the Sixth Circuit majority issued its order Feb. 2 without comment, Judge Karen Nelson Moore wrote a dissent joined by five others that criticized the court’s “stay-and-delay tactics.” She said the Supreme Court’s eventual Dobbs opinion “is unlikely to address, let alone resolve, the vagueness concerns” that caused the federal court to block enforcement of the “reasons ban.”
The Supreme Court limited its consideration of the Mississippi law to whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Viability for an unborn child, or the ability to survive outside the womb, is typically considered to be several weeks after the 15-week limit set by Mississippi’s law.
The state and many pro-life organizations, including the ERLC, asked the high court not only to uphold the law but overturn its Roe v. Wade opinion of 1973 and Planned Parenthood v. Casey ruling of 1992, decisions that prohibit states from banning abortions before an unborn child is viable. The Roe decision legalized abortion throughout the country, while Casey affirmed Roe but permitted some state regulation of the procedure. The oral arguments in December 2021 offered pro-lifers some hope the justices might grant those requests.
According to the National Down Syndrome Society, an estimated 6,000 children are born each year in the United States with Down syndrome, which takes place when a person has an extra copy of chromosome 21. A 2012 study published in the journal Prenatal Diagnosis calculated a U.S. abortion rate of 67 percent after a prenatal diagnosis of Down syndrome, though some estimates are higher, especially in Europe.
The Center for Reproductive Rights, Planned Parenthood Federation of America and American Civil Liberties Union challenged Tennessee’s ban on behalf of abortion providers in the state.
Tennessee is one of 17 states that have prohibited abortions based on disability, ethnicity or sex, according to the National Right to Life Committee. B&R — This article includes reporting by Lonnie Wilkey, editor of the Baptist and Reflector.