NASHVILLE, Tenn. – Just hours after the U.S. Supreme Court concluded historic arguments over abortion, a federal appeals court signaled it might be willing to allow yet another restrictive ban to go into effect.
Earlier this year, a three-judge panel on the 6th U.S. Circuit Court of Appeals temporarily halted banning abortion in Tennessee once cardiac activity is detected in an embryo — at around six weeks. But late Wednesday, the appeals court said it would vacate that ruling and instead schedule a rehearing before the full court.
While the state law will remain on pause because of a lower court ruling, the move marked yet another rapid turn in the ongoing battle over abortion access currently being fought inside the country's judicial system.
In 2020, Republican Gov. Bill Lee signed one of the nation's strictest anti-abortion bills at the time. The law not only banned abortion as early as six weeks — before many people know they're pregnant — but also outlawed abortions due to a prenatal diagnosis of Down syndrome, or because of the race or gender of the fetus.
Reproductive rights groups representing clinics in Tennessee quickly sued the state and U.S. District Judge William L. Campbell blocked the law almost immediately after Lee gave the bill his signature.
While the 6th Circuit eventually ruled that the so-called reasons ban could go into effect in late 2020, the federal panel later reversed course and blocked that provision in September.
At the time, Judge Amul R. Thaper dissented, but also broadly addressed abortion by writing that “the courts should return this choice to the American people — where it belongs."
“The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly,” Thapar wrote. “And if the public is unhappy, it can fight back at the ballot box.”
The 6th Circuit has yet to schedule a rehearing.
Meanwhile, Supreme Court justices are currently weighing whether to uphold Mississippi’s ban on abortions after 15 weeks of pregnancy. It will be months before a decision is issued, and the court may even overturn the nationwide right to an abortion that has existed for nearly 50 years.
Tennessee is among the many states with laws that would make abortion almost immediately illegal should the court overturn the historic 1973 Roe v. Wade decision legalizing abortion throughout the United States and its 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe.
“Allowing Mississippi’s ban to stand will erase nearly 50 years of precedent and lead to almost immediate abortion bans in Tennessee, Mississippi, and 24 other states,” said Ashley Coffield, president & CEO of Planned Parenthood of Tennessee and North Mississippi in a statement.
“Already, courts are preparing to allow harsh abortion bans to take effect — including Tennessee’s currently blocked (ban), which the full 6th Circuit Court of Appeals has agreed to reconsider in anticipation of a decision overturning Roe,” she added.
On the other hand, the Supreme Court could uphold the Mississippi law without overturning Roe, said Suzanna Sherry, a professor of law at Vanderbilt University.
“I cannot imagine any court holding that a ban at six weeks is not an undue burden,” she said.
This story has been corrected; law professor Suzanna Sherry's name is spelled Suzanna, not Suzzana.