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Divided appeals court panel holds that abortions in Tennessee can continue during coronavirus pandemic

by | Apr 29, 2020

By Dave Andrusko

Last Friday a divided panel of the Sixth Circuit Court of Appeal upheld U.S. District Judge Bernard A. Friedman’s preliminary injunction that prevents Tennessee from stopping the performance of elective abortions–part of a temporary ban on “non-emergency” health care procedures” aimed at slowing the spread of the coronavirus.

The state quickly asked the full Sixth Circuit panel to reconsider the decision, which was upheld, 2-1.

The panel majority—Judge Nelson Moore, joined by Judge Helene White– had little good to say about Gov. Bill Lee’s April 8th order banning all surgical abortions and plenty of dismissive comments

For example, Judge Moore wrote, “The State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. This is unsurprising because, as far as we can tell, every serious medical or public health organization to have considered the issue has said the opposite.”

Moore and White conceded

Of course, we do not mean to suggest that abortion rights during a public health crisis are identical to abortion rights during normal times. If Jacobson teaches us anything, it is that context matters. And as noted in Section B, infra, we have tried to accommodate for that context here

Then the majority immediately lowered the hammer in all their indignation:

What we will not countenance, however, is the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations.

Judge Amul Thapar was thoroughly unpersuaded and came out firing in his dissent:

Even in ordinary times, the district court’s injunction in this case would be deeply flawed. But these are no ordinary times. In the midst of a once-in-a-century pandemic, the district court broadly enjoined the State of Tennessee from enforcing a measure at the heart of the State’s response. In doing so, the court committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic. All because the district court thought that a three-week delay for certain abortions might prevent some unidentified person from having an abortion. Most cases of judicial aggrandizement have costs. But in few are the potential costs so great. I would reverse.

The dissent is very much worth reading in its entirety. It begins on page 23. Here is Judge Thapar’s no-nonsense conclusion:

To sum up: the district court granted an injunction without much effort to apply the relevant law, without specific factual findings, and without any attempt to tailor the remedy to the purported constitutional violation. If that doesn’t count as an abuse of discretion, I don’t know what would. I respectfully dissent.

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