Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Sixth Circuit Abortion Case Illustrates Leftist Judges’ Disdain For Laws And Precedent
The Federalist ^ | April 12, 2021 | Margot Cleveland

Posted on 04/12/2021 6:36:01 AM PDT by Kaslin

The case shows the judiciary is just as fractured as the rest of America, and leftist judges are defiantly ignoring Supreme Court and circuit precedent.


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. Planned Parenthood

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.


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: 3judgepanel; 6thcircuit; abortion; abortionlaw; amulthapar; bernardafriedman; bernardfriedman; bristolvsslatery; dubyajudge; enbanc; federalcourts; grewinoffice; helenewhite; judiciary; karenmoore; karennelsonmoore; karennmoore; law; mdtennessee; politicaljudiciary; precedent; rapinbilljudge; reaganjudge; seniormomentjudge; sixthcircuit; smirkingchimpjudge; tennessee; threejudgepanel; trumpjudge

1 posted on 04/12/2021 6:36:01 AM PDT by Kaslin
[ Post Reply | Private Reply | View Replies]

To: Kaslin

The abortionist are finally going to appear before a court where these precedents and vapid, evil rhetoric about women’s rights and reproductive health care will not matter, and when they do there will be literal hell to pay.


2 posted on 04/12/2021 6:46:44 AM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Kaslin

The courts are clearly intimidated and/or run by leftist ideologues


3 posted on 04/12/2021 7:07:15 AM PDT by Truthoverpower (Fraud !!! Now we’re off the TRUMP TRAIN and on the Swamp express to communist hell !! TRUTH! )
[ Post Reply | Private Reply | To 1 | View Replies]

To: Truthoverpower

This is where President Trump and an agreeable senate were vital in staving off, for a while the hordes of barbarians. The dissenting judge in the 3-judge panel was a Trump appointee.


4 posted on 04/12/2021 8:05:17 AM PDT by jimtorr
[ Post Reply | Private Reply | To 3 | View Replies]

To: Kaslin

This:

“In so ruling, the district court judge applied a balancing test,”

sounds like a Progressive invented legalism - “balancing test”.

What Constitutionally suggests that laws can never burden someone? None.

Any law can - Constitutionally - burden someone, just as laws can benefit someone. It is not in the Constitution that laws can only do one or the other. The only “undue” burdens the Constitution objects to are burdens that deny someone their rights. Laws can command how and when your time and efforts must be imposed upon to achieve some objective of the law. As long as that law does not deny some right, it cannot be said that what it imposes is - Constitutionally - “undue”. The rest of any “undue” nature must be determined by the people’s represntatives, not judges.

So:

(1) While the SCOTUS may have said abortions can be legal, it did not imply they could not be regulated - they can.

(2) The Tennessee law did not outlaw abortions and does not prevent them. It only regulates how they are done.

The only “balance” that judges should be making is not between secular “burdens and benefits” but instead the burdens and benefits of being tru to the law, and the law being true to the state and federal Constitutions.

There are no secular “burdens” either the laws are the state constitutions are prohibited from imposing, other than against Constitutional rights.

Judges using their “balancing test” are using their offices to act as supreme, unelected, legislators and executive policy makers, which no Constitution has given them the right, responsibility or authority to be.


5 posted on 04/12/2021 8:48:14 AM PDT by Wuli
[ Post Reply | Private Reply | To 1 | View Replies]

To: Wuli

I think what they are intended to “balance” is an individuals rights to - or to do - something, against the states right to regulate something.


6 posted on 04/12/2021 9:26:36 AM PDT by jimtorr
[ Post Reply | Private Reply | To 5 | View Replies]

To: jimtorr

“I think what they are intended to “balance” is an individuals rights to - or to do - something, against the states right to regulate something.”

Yes, but with that out of the way, ther are no other “burdens” that are Constitutionally to be “balanced”. The Progressives misuse of any “balancing test” takes them away from the law versus the Constitution and into public policing making. With the law versus the Constitution question out of the way, it is up to legislators to determine what public burdens a law may impose, because the question is subjective, not objective (how much time is “too much” time) and cannot be answered by a judge’s own personal opinion - there is no “legal” test for “too much time”.


7 posted on 04/12/2021 9:46:47 AM PDT by Wuli
[ Post Reply | Private Reply | To 6 | View Replies]

To: Wuli
The district "judge" is Senior Moment judge Bernard A. Friedman, a Reagan judge who "grew in office" to become a pinwheels-for-eyes Lefty.

The United States Court of Appeals for the Sixth Circuit [As of April 28, 2019]:

Age	Title	        Judge	                Duty station	Born    Term of Service                 Appointed by
68	Chief Judge	R. Guy Cole Jr.	        Columbus, OH	1951	1995–present   &2014–present	Clinton
71	Circuit Judge	Karen Nelson Moore	Cleveland, OH	1948	1995–present	—	—	Clinton
71	Circuit Judge	Eric L. Clay	        Detroit, MI	1948	1997–present	—	—	Clinton
69	Circuit Judge	Julia Smith Gibbons	Memphis, TN	1950	2002–present	—	—	G.W. Bush
59	Circuit Judge	Jeffrey Sutton	        Columbus, OH	1960	2003–present	—	—	G.W. Bush
67	Circuit Judge	Richard Allen Griffin	Traverse City	1952	2005–present	—	—	G.W. Bush
53	Circuit Judge	Raymond Kethledge	Ann Arbor, MI	1966	2008–present	—	—	G.W. Bush
65	Circuit Judge	Helene White	        Detroit, MI	1954	2008–present	—	—	G.W. Bush
66	Circuit Judge	J Branstetter Stranch	Nashville, TN	1953	2010–present	—	—	Obama
68	Circuit Judge	Bernice B. Donald	Memphis, TN	1951	2011–present	—	—	Obama
50	Circuit Judge	Amul Thapar	     *  Covington, KY	1969 	2017–present	—	—	Trump
55	Circuit Judge	John K. Bush	     *  Louisville, KY	1964	2017–present	—	—	Trump
51	Circuit Judge	Joan Larsen	     *  Ann Arbor, MI	1968	2017–present	—	—	Trump
50	Circuit Judge	John B. Nalbandian   *  Cincinnati, OH	1969	2018–present	—	—	Trump
47	Circuit Judge	Chad Readler	     *  Columbus, OH	1972	2019–present	—	—	Trump
40	Circuit Judge	Eric E. Murphy	     *  Columbus, OH	1979	2019–present	—	—	Trump


======================
83	Senior Circuit	Gilbert S. Merritt Jr.	Nashville, TN	1936	1977–2001      	2001–present	Carter &1989–1996
95	Senior Circuit	Harry W. Wellford	inactive	1924	1982–1991	1991–present	Reagan
90	Senior Circuit	Ralph B. Guy Jr.	Ann Arbor, MI	1929	1985–1994       1994–present	Reagan
87	Senior Circuit	James L. Ryan	        inactive	1932	1985–2000	2000–present	Reagan
75	Senior Circuit	Danny Julian Boggs	Louisville, KY	1944	1986–2017      	2017–present	Reagan &2003–2009
84	Senior Circuit	Alan Eugene Norris	Columbus, OH	1935	1986–2001	2001–present	Reagan
83	Senior Circuit	Richard Suhrheinrich	Lansing, MI	1936	1990–2001	2001–present	G.H.W. Bush
83	Senior Circuit	Eugene Edward Siler Jr.	London, KY	1936	1991–2001	2001–present	G.H.W. Bush
75	Senior Circuit	Alice M. Batchelder	Medina, OH	1944	1991–2019      	2019–present	G.H.W. Bush &2009–2014
77	Senior Circuit	Martha Craig Daughtrey	Nashville, TN	1942	1993–2009	2009–present	Clinton
77	Senior Circuit	Ronald Lee Gilman	Memphis, TN	1942	1997–2010	2010–present	Clinton
71	Senior Circuit	John M. Rogers	        Lexington, KY	1948	2002–2018	2018–present	G.W. Bush
67	Senior Circuit	Deborah L. Cook	        Akron, OH	1952	2003–2019	2019–present	G.W. Bush
73	Senior Circuit	David McKeague	        Lansing, MI	1946	2005–2017	2017–present	G.W. Bush

& denotes Chief Judge of the Court
* denotes Federalist Society member

8 posted on 04/12/2021 11:52:56 AM PDT by kiryandil (China Joe and Paycheck Hunter - the Chink in America's defenses)
[ Post Reply | Private Reply | To 5 | View Replies]

Bristol v. Slatery

Decided and Filed: April 9, 2021
Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON, GRIFFIN,
KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,
NALBANDIAN, READLER, and MURPHY, Circuit Judges.

MOORE, J.
(pp. 3–6), delivered a separate opinion dissenting from the grant of the petition for initial hearing
en banc, in which COLE, C.J., and CLAY, WHITE, STRANCH, and DONALD, JJ., joined.


9 posted on 04/12/2021 11:53:49 AM PDT by kiryandil (China Joe and Paycheck Hunter - the Chink in America's defenses)
[ Post Reply | Private Reply | To 8 | View Replies]

As we can see, the Sixth Circuit has been ENTIRELY politicized:

Circuit Judge	Karen Nelson Moore	Clinton
Chief Judge	R. Guy Cole Jr.	        Clinton
Circuit Judge	Eric L. Clay	        Clinton
Circuit Judge	Helene White	        G.W. Bush*
Circuit Judge	J Branstetter Stranch	Obama
Circuit Judge	Bernice B. Donald	Obama

*Helene White was part of the three judge panel voting to ignore precedent in Bristol v. Slatery.

10 posted on 04/12/2021 12:00:08 PM PDT by kiryandil (China Joe and Paycheck Hunter - the Chink in America's defenses)
[ Post Reply | Private Reply | To 9 | View Replies]

The ten judges voting to follow precedent:

Circuit Judge	Julia Smith Gibbons		G.W. Bush
Circuit Judge	Jeffrey Sutton	         	G.W. Bush
Circuit Judge	Richard Allen Griffin	 	G.W. Bush
Circuit Judge	Raymond Kethledge	 	G.W. Bush
Circuit Judge	Amul Thapar	         	Trump
Circuit Judge	John K. Bush	        	Trump
Circuit Judge	Joan Larsen	      	        Trump
Circuit Judge	John B. Nalbandian       	Trump
Circuit Judge	Chad Readler	         	Trump
Circuit Judge	Eric E. Murphy	         	Trump

Note the makeup of this voting bloc.

11 posted on 04/12/2021 12:05:51 PM PDT by kiryandil (China Joe and Paycheck Hunter - the Chink in America's defenses)
[ Post Reply | Private Reply | To 10 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson