My Prediction After State’s Oral Argument Defending Abortion Ban Laws

Apr 30, 2021 by David Fowler

My Prediction After State’s Oral Argument Defending Abortion Ban Laws
Yesterday I listened to the oral arguments in the U.S. Court of Appeals for the Sixth Circuit over the correctness of federal District Court Judge William Campbell’s decision to prevent enforcement of Governor Lee’s abortion legislation enacted last year prior to a trial on the constitutionality of the law. Here are my thoughts and my prediction.

Setting the Procedural Context.

The argument was essentially over whether the law in question is so constitutionally suspect (meaning likely unconstitutional) that it should not go into effect until a full trial on its constitutionality can be had and the matter finally decided. 
A decision not to allow a law to be enforced before a final decision after a trial is called a preliminary injunction. When that injunction is issued and upheld by an appellate court all is not lost. However, it does mean things look bad for the state. It means that at trial the state will need to provide a better line of legal argument than the one previously made or put a better set of facts into evidence.
Oral argument was before a three-judge panel, two of whom were appointed by President Bill Clinton and the other appointed by President Donald Trump.

The Law at Issue.

There were two parts of the enacted law at issue or, as a practical matter, two laws.
One, Section 216, would make it a crime for a doctor to perform an abortion once a heartbeat is detected and, if that is not constitutional, then the crime would apply at any of several different stages of fetal development up to 24 weeks gestation, depending on which, if any, the court thinks is constitutional.
The other, Section 217, would make it a crime for a doctor to knowingly perform an abortion for one of three reasons: the sex or ethnicity of the unborn child, or the unborn child being diagnosed with Downs Syndrome.

Highlights from the Oral Arguments.

Section 216—Was Roe v. Wade at issue?
No. No argument for reversal of Roe and its progeny was broached, let alone made. In fact, of the 15 minutes the state had to argue, it spent less than 4 minutes arguing about Section 216, and most of that time was focused on questions by the judges about the abortion ban at 15 weeks.
The state’s oral argument in support of the 15-week ban was based predominately on the state’s interest in preventing fetal pain by dismemberment.
However, the state noted that even if preventing fetal pain is not a constitutional reason for banning abortion, a ban at 15 weeks is not a “substantial obstacle” to women having an abortion— one of the “tests” for constitutionality under Supreme Court precedent. The state argued that a ban at 15 weeks is not such an obstacle because the evidence at this point in the litigation process shows that “over 90% of abortions are before 15 weeks.” In other words, if the 15-week ban does survive and become law, the unborn child will have a 10% better chance of not being aborted than he or she would have had without the law.
Section 217—The ‘Discrimination’ Ban.
Most of the oral argument from the state focused on whether District Court Judge Campbell had properly held that the language prohibiting abortions for sex, ethnicity, and Downs Syndrome was unconstitutionally vague, meaning the doctor could not really know whether his or her actions violated the law.
Interestingly, even the arguments by the abortionists’ counsel focused on this issue, which, to me, sent a signal that the abortionists were not too worried about the appellate court reversing Judge Campbell’s decision to prevent enforcement of Section 216.
Lurking in the background of this focus, however, was a recent decision rendered by a majority of the judges on the Sixth Circuit in which 11 of 16 judges voted to hold Ohio’s ban on abortions because of Downs Syndrome (called an en banc decision). However, one of the five judges voting to hold the law unconstitutional was Judge Moore, before whom Tennessee’s case was argued.

My General Impression

As I read the briefs of the parties and listened to technical line-drawing oral arguments, I could not help but think of what the Christian dissident from Russia, Aleksandr Solzhenitsyn, said about law in his 1978 Commencement address to Harvard University:
I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man's noblest impulses.

And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.
In other words, what I heard were arguments of law that were devoid of any “objective legal scale.” The arguments were technically legal ones about precedents and how the law in question relates to those precedents. This kind of “legalistic structure” was producing “moral mediocrity” in 1978, and our failure to insist on any “objective” law within our legal system over the intervening years is why we have gone from moral mediocrity to anything goes. Click here to listen to the oral argument

My Prediction

I predict that Judge Campbell’s injunction will be upheld as to both Sections 216 and 217.
Judge Moore, as noted, doesn’t even think Ohio’s “discrimination” ban is constitutional, so she’s not likely to think Tennessee’s is, let alone the ban under Section 216.
Judge Martha Daughtrey did not participate in the en banc decision involving Ohio’s law, but she is a living constitution jurist if ever there was one. For example, she dissented from the Sixth Circuit’s decision that upheld state marriage licensing laws prior to reversal by the Supreme Court in Obergefell v. Hodges. I strongly suspect she will vote in favor of upholding the preliminary injunction in toto.
I don’t know what Judge Thapar, the Trump appointee, will do, but if I’m correct about the other two judges, his vote won’t matter. But, based on his questions during oral argument and his vote in favor of the Ohio ban on discriminatory abortions, I suspect he will vote to uphold Section 217. And he might dissent from the other judges on Section 216 to the extent that the injunction prevents enforcement of the law from 15 weeks until birth.


I would love to be wrong in my prediction, and I will let you know what happens.
But the bigger take-a-way is what Solzhenitsyn said: We better start arguing for an objective basis for law—e.g., that a “person” is a human being whose life comes from God—or we will have a totalitarian government before long. Someone has to decide what it means to be human, and if the Creator God does not fill that role, then some person or group of persons will have to be substituted for God.
That substitution is the very definition of totalitarianism, and if you want to understand all of this better, register today for Restoring the Vision.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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