This week was a good week for the cause of life, at least in the Sixth Circuit. My colleague, Shipwreckedcrew, posted earlier on yesterday’s decision by the Sixth Circuit sitting en banc to uphold an Ohio law that prevents a diagnosis of an infant potentially having Down Syndrome being used as a reason for having an abortion. Read Sixth Circuit Court of Appeals Upholds Ohio Law Prohibiting Doctors From Aborting Down Syndrome Children. That was a 9-7 decision. And even though Chief Justice John Roberts believes in leprechauns and that there are no such thing as Obama judges and Trump judges (see Federal Judge Shows Why CJ John Roberts Was Dead Wrong About There Being No Obama Judges for background), all of Clinton’s appointees and all of Obama’s appointees voted to allow selective abortion based upon potential disability (and one of George W. Bush’s because…just because). All of Trump’s appointees voted to defend the sanctity of life, as did the sole G. H. W. Bush appointee and most of George W. Bush’s. This decision was a rehearing of a decision by a three-judge panel in October 2019 that struck down the law. In that decision, an Obama judge and a Clinton judge formed the majority while a George H. W. Bush judge dissented.
The Sixth Circuit was also the scene of an interesting bit of judge-on-judge butt-kicking of the rhetorical sort. It laid bare for the world to see the totally lawless, politicized, and results-oriented judges that have been put on the bench by Clinton and Obama and the value of having not only a majority of judges on the circuit but the vital importance of having men and women on the bench who believe in the Constitution and the rule of law and have the guts to stand up and be counted.
Our hero in today’s saga is Amul Thapar. He is the child of immigrants from India. His father was a truck driver, and his mother owned a restaurant. He’s a Berkeley Law grad and an adult convert to Catholicism. He’s been in private practice, a federal prosecutor, and was appointed to the federal bench by President George W. Bush before being nominated to the Sixth Circuit by President Trump.
In 2015, Tennessee passed a law creating a 48-hour waiting period before an abortion to ensure the woman was not acting under pressure and had truly given her informed consent. Instead of asking for an injunction…mostly because Supreme Court jurisprudence has made it abundantly clear that waiting periods are completely legal…a group of abortuaries, Bristol Women’s Regional Women’s Center, Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi filed a lawsuit. To show how much this law affected abortion rates in Tennessee, it was in effect for four years, and this was the result:
CREDIT: Charlotte Lozier Institute Abortion Reporting: Tennessee (2018)
The case came to trial in October 2019, and the Tennessee law was struck down. Tennessee asked for a stay pending the appeal. This would have left the law in place during that period. That request was heard by a three-judge panel: Karen Nelson Moore (Clinton), Helene White (George W. Bush)footnote, and Judge Thapar.
That panel ruled, 2-1, to dismiss Tennessee’s request on the grounds that the waiting period was “yet another unnecessary, unjustified, and unduly burdensome state law that stands between women and their right to an abortion.”
At this point, Thapar could have slunk away, but he didn’t.
Not only did he write a blistering dissent laying out how the majority had willfully ignored or misrepresented Sixth Circuit and Supreme Court rulings, but he also appealed to Tennessee to appeal this denial of their request for a stay to the entire court.
Since Casey, no federal appellate court has successfully struck down an abortion waiting period. Why? Because the Supreme Court says that waiting periods are constitutional. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 881–87 (1992) (plurality opinion). Indeed, both the Supreme Court and our court have upheld such laws. But here the majority, like the district court before it, decides to chart its own course.
In doing so, the majority ignores Supreme Court and Sixth Circuit precedent, as well as the correct legal standard. Given the weighty interests involved in this case, the majority’s failure to issue a stay merits immediate correction either by our court or a higher one. After all, “it is not our place to ignore precedent and push our own agenda.” United States v. Navarro, 986 F.3d 668, 675–76 (6th Cir. 2021) (Moore, J., dissenting)
The “Moore” who dissented against the idea that it was improper to “push our own agenda” is the same Moore on this panel.
The majority responded with a lengthy lecture…somehow, the name “Karen” seems appropriate for the author of this…telling the youngster that he needed to sit down and shut up.
Our dissenting colleague calls for “immediate correction” of this order. Dissent at 20. Yet we fail to see how en banc review of this stay order is warranted, or even available. Indeed, despite our dissenting colleague’s impressive string citation, he fails to reference a single case where this court has assembled en banc to review a premerits stay order. Rather, each involves en banc review of a panel opinion resolving a direct appeal of a preliminary injunction—something that the court unquestionably has the authority to do, but something that is inapposite in the context of a stay order. That the dissent fails to reference a case involving en banc review of a stay order—despite the similarity between the standards for addressing a motion to stay and reviewing a preliminary injunction—is unsurprising. It is one thing for the en banc court to take on a matter once it has run its course with the merits panel; it is something else entirely to burden the court and the parties with en banc proceedings on a pre-merits stay order while the panel and the parties proceed on the merits of the appeal. Such a course of action would be exceedingly wasteful, especially when the en banc court is able to review the panel’s resolution of the appeal itself in due course. Here, merits briefing is already underway and is scheduled to conclude in short order. An opinion resolving the merits will follow thereafter. With the benefit of complete briefing, we may rethink our reasoning and conclusions. Once an opinion on the merits issues, if either party desires en banc review, they are free to seek it. Any other approach would be an unwarranted waste of the Parties’ and this court’s resources, and would raise questions as to why this court was going out of its way to wield en banc review so indiscriminately and unnecessarily. See generally Neal Devins and Allison Orr Larsen, Weaponizing En Banc (February 9, 2021) (unpublished manuscript) (on file with authors). Available at SSRN: https://ssrn.com/abstract=3782576.
In any case, this court’s Internal Operating Procedures preclude such a wasteful result. They specify that only “[p]etitions seeking rehearing en banc from an order that disposes of the case on the merits or on jurisdictional grounds are circulated to the whole court” with limited exceptions that do not apply here. See 6 Cir. I.O.P. 35(g). Otherwise, “[p]etitions seeking rehearing en banc from other orders will be treated in the same manner as a petition for panel rehearing: They will be circulated only to the panel judges.” See 6 Cir. I.O.P. 35(h). This is the approach that we have previously followed. See Order, No. 12-4264, Serv. Emps. Int’l Union Local 1 v. Husted (6th Cir. Dec. 5, 2012) (treating a petition for rehearing en banc of a stay order as a petition for panel rehearing pursuant to 6th Cir. I.O.P. 35(g), (h)), ECF No. 48. We see no reason why it should be any different when a judge takes it upon himself to call for en banc rehearing sua sponte.
As for our dissenting colleague’s call for Defendants to attempt an end run around this court’s ordinary procedures by seeking initial hearing en banc, we think that Defendants are quite capable of making their own strategic decisions without our dissenting colleague’s assistance. Suffice it to say, there are good reasons for leaving our ordinary procedures in place and allowing an appeal to run its course before calling upon the full court to resolve an issue. The parties soon will have fully briefed the merits, expanding upon their initial arguments here. With the benefit of more detailed briefing and (if required) oral argument, the resulting opinion(s) will be all the more informed. Yes, as things stand, we think Defendants are unlikely to succeed on appeal, but that result is not preordained and will depend on the Parties’ full arguments. The same is true—we hope—for our dissenting colleague’s opposite conclusion, and we trust that he will keep an open mind.
Again, Thapar could have, as they say, “taken the L” and went onto other things. He doesn’t. In a lengthy footnote, he basically tells Tennessee that they need to try. This is how it starts: “The majority insists that Tennessee cannot seek en banc review of today’s decision because it is preliminary. I disagree.”
Read the whole decision. Judge Thapar’s dissent begins on page 20.
On Friday, in a 10-6 vote, the Sixth agreed with Tennessee’s request that the entire court directly hear their appeal. Moore, who had lectured Thapar and now had her butt handed to her, was livid. This is via Margo Cleveland at The Federalist:
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.
More extensive coverage of Moore’s meltdown is here.
There seem to be two lessons here. A majority of judges on the Sixth Circuit seem to be tired of the silly games played with abortion cases by their progressive colleagues. The majority’s opinion in the Tennessee case seems to be blatantly dishonest in its characterization of Casey and other abortion cases. Hopefully, the en banc decision in the Ohio case and the agreement to take this case en banc will signal a new beginning of how these cases are handled. The second observation is more definitive. It has been said that “one determined man makes a majority.” That was true in this case. Judge Thapar had several chances not to rock the boat. He decided to stand up for what was right and just and in defense of the weak and voiceless, and he prevailed. Having aging leftwing harpies rage at him is a feature, not a bug, of his method.
I forgot one thing…you can thank President Trump for reshaping the federal judiciary any time you wish.
NOTE: I seem to have maligned President Bush. My colleague, Shipwreckedcrew, notes in the comments that she is actually a Clinton appointee that benefitted from horse-trading (this is a figure of speech and not a reference to her size or appearance).