24 F.4th 1069
6th Cir.2022Background
- Tennessee enacted two sets of abortion laws: (1) "previability bans" criminalizing abortions at specified points before viability (including a fetal-heartbeat and multiple gestational-age thresholds); (2) "reason bans" criminalizing abortions performed when the provider knows the patient seeks the abortion because of the fetus’s sex, race, or a Down-syndrome diagnosis.
- Plaintiffs challenged both laws; the district court granted a preliminary injunction against both sets, finding likely success on the merits (previability bans unconstitutional under Roe and Casey; reason bans unconstitutionally vague).
- A Sixth Circuit panel affirmed the preliminary injunction (Memphis II), but the en banc court granted rehearing, vacating the panel opinion (Memphis en banc grant).
- The en banc court issued an order granting defendants’ renewed motion for a partial stay of the district court’s injunction as to the reason bans (i.e., stayed that portion of the injunction pending appeal).
- The en banc court also declined to proceed to merits briefing/argument now and is effectively delaying further consideration until after the Supreme Court decides Dobbs v. Jackson Women’s Health Organization, a decision the dissent criticizes as unrelated to the vagueness question and as improperly delaying adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of Tennessee’s previability bans | Previability bans violate the constitutional right to abortion under Roe and Casey | State defends bans or urges delay pending Supreme Court guidance | Not decided on the merits by the en banc court; district court preliminarily enjoined; en banc deferred further consideration pending Dobbs |
| Vagueness of Tennessee’s reason bans (sex, race, Down syndrome) | Reason bans are unconstitutionally vague and were properly enjoined | State contends the bans are enforceable; urged stay and appellate review | En banc granted a partial stay of the district court’s injunction as to the reason bans (injunction stayed pending appeal) |
| Whether to stay the injunction pending appeal | Plaintiffs oppose stay as prolonging enforcement of the bans and harming rights | Defendants sought a partial stay pending appeal | Stay granted in part: the injunction against the reason bans was stayed pending appeal |
| Whether to proceed now or delay en banc review until Supreme Court’s Dobbs decision | Plaintiffs seek prompt adjudication of vagueness and preexisting precedent application | Defendants and majority favored waiting for Dobbs because its ruling could affect previability-law analysis | En banc effectively delayed full consideration until after Dobbs; dissent criticized the delay as improper and unlikely to resolve the vagueness issue |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (established constitutional right to abortion)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (refined abortion-rights jurisprudence and viability standard)
- Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (Supreme Court decision expected to affect abortion-law standards)
- Memphis Ctr. for Reprod. Health v. Slatery, 14 F.4th 409 (6th Cir. 2021) (panel opinion affirming district court injunction; later vacated pending en banc)
- Memphis Ctr. for Reprod. Health v. Slatery, 18 F.4th 550 (6th Cir. 2021) (en banc grant/vacatur entry referenced in procedural history)
- United States v. Ramamoorthy, 949 F.3d 955 (6th Cir. 2020) (courts of appeals ordinarily should not make initial factual findings)
- Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853 (4th Cir. 2000) (panel decisions help narrow and focus issues before en banc review)
- Mitts v. Bagley, 626 F.3d 366 (6th Cir. 2010) (en banc review is often inefficient and rarely satisfying)