Federal Appeals Court Ruling on Ban for Certain Abortions Is Very Limited
Nov 27, 2020
Some pro-life activists got overly excited about a 2-1 decision last Friday by the Sixth Circuit Court of Appeals reversing the federal district court’s ordering prohibiting enforcement of that part of the Tennessee’s new abortion law banning abortions “because of” an unborn child’s sex or ethnicity or the presence of Downs Syndrome. The District Court’s follow-up order on Tuesday should not generate much excitement either if actually preventing an abortion is the goal.
Federal Appeals Court Rules Tennessee Can Ban Abortions on Babies With Down Syndrome
Contrary to what some thought, the Sixth Circuit Court did not hold the “reasons” ban was constitutional. It only held that the wording of the law was not unconstitutionally vague. It then returned the case to the federal district court to rule on whether the law violated Roe v. Wade and Planned Parenthood v. Casey.
Tuesday, the District Court held that the law could be enforced during the upcoming trial and, at this point in the process, it did not seem to violate those decisions, BUT only because the state conceded that the law was effectively a “don’t ask, don’t tell” policy.
Based on the state’s representations, the District Court said “[a] woman is not prohibited from obtaining an abortion for one of the 'reasons’ identified in the section, SO LONG AS SHE DOES NOT DISCLOSE THE REASON to the abortion provider.” The Court also said, “[T]he physician is under ‘NO DUTY TO INQUIRE about a patient’s reasons for seeking the abortion.” Finally, it said “oblique references to race, sex, or advanced maternal age – would be insufficient to establish knowledge.”
Now, ask yourself: How often do you think an abortionist will let the woman give a prohibited reason as a reason for wanting the abortion, much less put it in the medical record to evidence the abortionist’s violation of the law?
Tennessee Court of Appeals upholds law banning abortions for Down syndrome