By Dave Andrusko
Back on February 22, we analyzed a decision on an informed consent law which sharply divided a three-judge panel of the 6th U.S. Circuit Court of Appeals. The panel rejected Tennessee’s request to issue a stay in order that the state could revive its 48 hour waiting period while the state Attorney General appeals U.S. District Judge Bernard A. Friedman’s decision striking down the law to the full Sixth Circuit.
We also wrote about Judge Amul Thapar ‘s brilliant dissent. Judge Thapar asked the full 6th Circuit to review the 2-1 decision as did the state of Tennessee.
Yesterday, a coalition of 21 states filed an amicus brief in support of that request. Kentucky’s Attorney General Daniel Cameron, who had joined Louisiana Attorney General Jeff Landry in leading the charge, explained what the 18-page friend-of-the-court brief argued.
“More than half of the states in the country have waiting periods before an abortion, and the Sixth Circuit’s decision has the potential to throw these laws into disarray,” said Attorney General Cameron. “We cannot let that happen, and we co-led this brief to support Tennessee and also to protect the Commonwealth’s laws.”
According to a statement from the Kentucky AG’s office
The coalition argues that the Sixth Circuit’s decision casts doubt on the governing rule from the U.S. Supreme Court’s ruling in June Medical Services v. Russo, which is used to review the legality of abortion laws throughout the country. The Sixth Circuit applied this same rule last year in a decision to uphold Kentucky’s transfer agreement law, requiring that abortion clinics have a transfer agreement in place with a local hospital and ambulance provider. The amicus brief states that the Sixth Circuit ignored this important precedent when applying the rule to Tennessee’s abortion waiting period law.
The brief also argues that both the U.S. Supreme Court and the Sixth Circuit have upheld similar laws against constitutional challenges, and if the full court does not reconsider this decision, this precedent will be jeopardized.
The amicus fleshes out these contentions. Let me focus on just one:
*First and foremost that
Since the Supreme Court handed down its split decision in June Medical last summer, courts have grappled with the question of which opinion controls. The answer to that question matters quite a bit. In fact, deciding whether the Chief Justice’s concurrence controls is nothing short of deciding what legal standard courts must apply when evaluating the constitutionality of abortion laws. The Sixth Circuit answered that question four months ago in EMW Women’s Surgical Center, P.S.C. v. Friedlander, a published decision that adopted the Chief Justice’s concurrence as “the ‘controlling opinion’ from [June Medical].” In doing so, the panel made its holding clear: “We must apply [the Chief Justice’s] reasoning as we would the reasoning of any other controlling opinion. No waffling. No equivocation. No hint that this was an unnecessary detour. In fact, the very next sentence in the opinion explained that the district court below erred “[b]ecause” it did not apply the legal standard from the Chief Justice’s concurring opinion.
What was it Chief Justice John Roberts concluded in his concurring opinion issued in the June 29th, 2020 case of June Medical Services L.L. v. Russo in which the justices struck down a Louisiana law? Here’s how the 8th U.S. Circuit Court of Appeals summarized his reasoning:
“According to Chief Justice Roberts, the appropriate inquiry under the [1992] Casey [decision] is whether the law poses ‘a substantial obstacle’ or ‘substantial burden, not whether benefits outweighed burdens” [“cost-benefit standard”]. Underlining added.
At this stage, Tennessee is awaiting a decision whether the full 6th Circuit will consider the case.
The 19 other states which joined Kentucky and Louisiana in filing the brief were Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia.