On Friday, in a procedural oddity, the Sixth Circuit Court of Appeals voted to hear the initial appeal in Bristol v. Slatery as a full court, rather than allowing the case to proceed as normal before a three-judge panel. The case involved abortion, and the takeaways are two-fold: The judiciary is just as fractured as the rest of America, and leftist judges are defiantly ignoring Supreme Court and circuit precedent.
To understand the significance of the Sixth Circuit’s order on Friday, one needs a basic primer of federal practice. The federal court system is mainly a three-tier system, with cases beginning at the lowest level, called district courts. The middle tier of courts consists of federal appellate courts, of which there are 13, although the Federal Circuit only hears specialized appeals. The 12 other circuits hear appeals from district courts located in the boundaries of the appellate courts as established by Congress.
When a losing party appeals, the case is randomly assigned to a three-judge panel. As one could imagine, the composition of that panel may determine the outcome of the case, for as much as Chief Justice John Roberts protests, there are Republican judges and Democrat judges. That’s unfortunate, because politics and policy judgments belong to legislators, but once originalism is abandoned, judges and justices step into those decisions.
After a three-judge panel decides an appeal, the losing party has three options (beyond accepting defeat): He can ask the panel to reconsider its decision, he can ask the full court to rehear the case “en banc,” or he can seek review by the Supreme Court. For “en banc” review to occur, typically a majority of the active judges on the court must vote to rehear the case en banc. (The Ninth Circuit proceeds differently because it has a whopping 29 judges, making en banc review as a full court infeasible.) En banc review is exceedingly rare.
Back to the Abortion Case
Returning then to Bristol v. Slatery. That case concerns a law passed by the Tennessee legislature in 2015 that requires doctors to provide women who seek an abortion information to ensure informed consent 48 hours before the abortion is performed. Among other things, the information required includes the age of the human being in utero, alternatives to abortion, and the medical risks and benefits of abortion and pregnancy. The law also expressly provided that if a court enjoined the 48-hour waiting period, a 24-hour waiting period would apply.
Shortly after Tennessee passed the waiting-period law, a group of abortion providers sued, claiming the law was unconstitutional. The plaintiffs, which consisted of Bristol Regional Women’s Center and three other abortion clinics including Planned Parenthood, did not seek a preliminary injunction to stop the law from going into effect.
So Tennessee’s waiting period law went into effect in July 2015, and for approximately five years it remained in force. Then, following a bench trial, a federal district court judge declared the law unconstitutional.
In so ruling, the district court judge applied a balancing test, weighing the benefits of the law against its claimed burdens. After finding the law “provides no appreciable benefit,” but “causes increased wait times, imposes logistical and financial burdens, subjects patients to increased medical risks, and stigmatizes and demeans women,” the trial court held the law unduly burdens abortion and is thus unconstitutional.
Tennessee’s attorney general immediately appealed to the Sixth Circuit Court of Appeals, which hears appeals from federal district courts located in Tennessee, Michigan, Ohio, and Kentucky. Tennessee also filed a motion for a stay pending appeal, meaning it requested the appellate court allow it to continue enforcing the waiting-period law until the appeal concluded.
What the Sixth Circuit Did Then
The motion to stay went to a three-judge panel of the Sixth Circuit, consisting of Karen Nelson Moore, a Bill Clinton appointee, Helene White, a G.W. Bush appointee, and Amul Thapar, a Donald Trump appointee. In a 2-1 decision authored by Moore, the panel denied Tennessee’s motion for a stay, concluding the waiting period law was “likely” unconstitutional.
Judge Thapar wrote a scathing dissent, excoriating his fellow jurists for ignoring Supreme Court precedent upholding waiting periods and noting “no federal appellate court has successfully struck down an abortion waiting period.” Thapar rebuked his colleagues for ignoring the lower court’s application of the wrong standard for judging the constitutionality of abortion laws, namely a balancing test that compared the benefits that flowed from the law to burdens of the waiting period.
The proper standard, Judge Thapar noted, was instead the “undue burden” standard established in Casey, which holds that “a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In fact, as Thapar noted, the Sixth Circuit had already rejected the balancing test in EMW Women’s Surgical v. Friedlander.
Because the lower court applied the improper standard and the Supreme Court in Casey made clear “that abortion waiting periods are reasonably related to legitimate state interests as a matter of law,” Thapar concluded “that Tennessee was likely to succeed on the merits of its appeal.” But, as Thapar also recognized, Moore and White had already concluded to the contrary in a detailed opinion spanning nearly 20 pages, and that decision ignored controlling Supreme Court and Sixth Circuit precedent.
So why wait for the majority to repeat the mistake following full briefing on the merits of the appeal? (Remember, the only issue before the panel concerned the propriety of issuing a stay pending the appeal, but that question, in constitutional cases, rests nearly completely on whether the party seeking a stay has a strong likelihood of success on the merits.)
Instead, the Case Moved Straight to En Banc
Judge Thapar believed, “given the weighty interests involved in this case” and the majority’s blatant disregard for Supreme Court and Sixth Circuit precdent, that waiting for the panel to regurgiate its same flawed reasoning following briefing and oral argument served no purpose, and he called for “correction either by our court or a higher one.” In a lengthy footnote, Thapar highlighted the governing procedural rules, noting “if Tennessee chose to file a petition for initial hearing en banc on the merits, our court could grant it.”
That is exactly what occurred, with Tennessee’s attorney general filing a motion for the initial hearing to be before the full court. The Sixth Circuit Court of Appeals on Friday, in a 10-6 vote, granted that motion.
It was now Judge Moore’s turn to issue a seething dissent, and she did, accusing her 10 fellow judges of lacking “a principled basis” for hearing the case initially en banc. She then stressed that the decision to proceed en banc “tarnishes this court’s reputation for impartiality and independence,” and wrongly cements in the public’s mind the idea that “certain judges invariably resolve certain cases in certain ways.”
For all her high-sounding principles, however, it was Moore’s decision denying the stay that provides proof of leftist knee-jerk decisionmaking from the bench. That Moore could only garner five colleagues to join her in opposing en banc review—an extraordinary and rare event—compared to her ten fellow judges voting to grant the petition speaks volumes to the Sixth Circuit’s concerns about the opinion.
Those concerns likely extended much beyond the denial of Tennessee’s motion to pause the enforcement of Tennessee’s waiting period law. Rather, the Sixth Circuit as a court likely found offense—meriting correction—in Judge Moore’s treatment of the controlling circuit precedent of EMW Women’s Surgical Center v. Friedlander.
Moore Ignored Her Own Circuit’s Precedent
In EMW, a panel of the Sixth Circuit held that the undue burden standard of Casey continues to govern questions concerning the constitutionality of abortion laws. “Under that standard, a law regulating abortion is invalid if it ‘imposes an undue burden on a woman’s ability’ to choose to have an abortion before viability.” The court in EMW expressly rejected the proposition that the undue burden test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
Using such a balancing test first found support in the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. That opinion added a gloss to the Casey standard, noting courts should weigh “the asserted benefits” of the regulations “against the burdens.”
But last year in June Medical Services v. Russo, the Supreme Court failed to garner a majority to support the use of a balancing test. Instead, a four-justice plurality found a balancing approach appropriate, while Justice John Roberts, who joined in the holding striking the abortion regulation down, rejected the balancing test.
“Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts,” Roberts wrote in concurrence. “Instead, “the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with Casey.’” Further, because Roberts found “the discussion of benefits in Whole Woman’s Health as not necessary to its holding,” he rejected the idea that a balancing test applied.
When the Sixth Circuit considered the abortion law at issue in EMW, the panel began by assessing the appropriate standard to apply. Was it the “undue burden” standard of Casey, or did Hellerstedt require a balancing test? The court, in a 2-1 decision, concluded that given Roberts’s concurrence in June Medical, the Casey standard controlled. Accordingly, the EMW court rejected the balancing test.
The district court in Bristol, however, wrongly applied the balancing test. But rather than acknowledge that fact and correct the lower court, Judge Moore suggested EMW might be “dicta”—meaning not controlling—and further suggested that Tennessee “may well have overstated the precedential value of EMW.” In the end, Moore concluded whether the court applied the balancing test or the undue balance test was irrelevant, but to the full court, her opinion read, as dissenting Judge Thapar put it, as an “invitation to defy precedent.”
Under these circumstances, Moore has no one to blame but herself for the Sixth Circuit removing the appeal from the panel she led. Her complaints and criticism also sound sorely of projection.