6th Circuit Emergency Motion
6th Circuit Emergency Motion
6th Circuit Emergency Motion
No. 20-5969
v.
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................2
BACKGROUND .......................................................................................................3
ARGUMENT ...........................................................................................................10
CONCLUSION ........................................................................................................23
i
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 3 (3 of 85)
TABLE OF AUTHORITIES
Page(s)
Cases
Colautti v. Franklin,
439 U.S. 379 (1979) ................................................................................ 16, 17, 18
Daunt v. Benson,
956 F.3d 396 (6th Cir. 2020) .................................................................................9
Fowler v. Benson,
924 F.3d 247 (6th Cir. 2019) ...................................................................... 8, 9, 10
Gonzales v. Carhart,
550 U.S. 124 (2007) ...................................................................................... 15, 19
Karlin v. Foust,
188 F.3d 446 (7th Cir. 1999) ...............................................................................17
Kolender v. Lawson,
461 U.S. 352 (1983) .............................................................................................18
Maryland v. King,
567 U.S. 1301 (2012) ...........................................................................................21
Munaf v. Geren,
553 U.S. 674 (2008) ...............................................................................................8
Nken v. Holder,
556 U.S. 418 (2009) ...............................................................................................9
iii
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 5 (5 of 85)
Preterm-Cleveland v. McCloud,
994 F.3d 513 (6th Cir. 2021) (en banc) ........................................................ 12, 19
Roe v. Wade,
410 U.S. 113 (1973) ........................................................................................ 2, 11
State v. Tester,
879 S.W.2d 823 (Tenn. 1994) ..............................................................................19
Other
vi
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 8 (8 of 85)
The State respectfully requests that this Court fully stay the district court’s
preliminary injunction pending appeal so that the State can enforce both the Timing
Provisions of Section 216 and the Antidiscrimination Provision of Section 217. The
en banc Court has already stayed the preliminary injunction regarding Section 217.
And Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, No. 19-1392
(June 24, 2022), now makes clear that Section 216 constitutionally prohibits the
Because any delay costs the lives of Tennessee children, the State asks the
Court to grant this emergency motion as soon as possible. To that end, the State
proposes that Plaintiffs, who publicly stated a month ago that they anticipated this
motion, file their response by 2:30 PM Eastern Time today. If the Court does not
1
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 9 (9 of 85)
INTRODUCTION
Today the U.S. Supreme Court held that the U.S. Constitution “does not
prohibit the citizens of each State from regulating or prohibiting abortion.” Dobbs,
slip op. at 79. The Supreme Court expressly overruled Roe v. Wade, 410 U.S. 113
833 (1992), returning the authority to regulate or prohibit abortion “to the people
and their elected representatives.” Dobbs, slip op. at 69. Rejecting Casey’s “undue
burden” test, which “has proved to be unworkable,” id. at 62, the Supreme Court
unborn children who have reached 15 weeks probable gestational age, id. at 78
In 2020, for many of the same reasons that justified Mississippi’s law, the
216(c)(1). When the unborn child’s gestational age is 6 weeks or older, the physician
record that, in the physician’s good faith medical judgment, the unborn child does
not have a fetal heartbeat at the time of the abortion.” Id. § 39-15-216(c)(2).
2
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 10 (10 of 85)
Additional restrictions apply at 8, 10, 12, 15, 18, 20, 21, 22, 23, and 24 or more
The district court held that Section 216 violated Casey by “prohibit[ing]
abortions based solely on gestational age rather than viability” and thus preliminarily
PageID# 756. After this Court granted rehearing en banc, the full Court granted the
State’s motion for a partial stay of the preliminary injunction pending appeal to the
Order, Dkt. No. 122-2. Because the Supreme Court has now expressly overruled
Roe and Casey, the State is also likely to prevail on appeal regarding Section 216
(the Timing Provisions). Accordingly, this Court should fully stay the preliminary
injunction pending appeal so that Tennessee can enforce both Section 216 and
Section 217. As the Supreme Court recognized in Dobbs, the State has a valid
interest in protecting the lives of unborn Tennesseans. Those lives are at risk each
day the preliminary injunction remains in place, so this Court should grant the State’s
BACKGROUND
I. Statutory Background
legislative findings that additional abortion restrictions were necessary to further the
3
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 11 (11 of 85)
State’s interests. Among other things, the legislature determined that the “presence
of life at every stage of human existence,” Tenn. Code Ann. § 39-15-214(a)(7); that
a “growing body of medical evidence and literature supports the conclusion that an
unborn child may feel pain from around eleven (11) to twelve (12) weeks gestational
age, or even as early as five and a half (5 ½) weeks,” id. § 39-15-214(a)(24); that
advances in science and neonatal care have “lowered the gestational limits of
“[a]bortions performed later in pregnancy pose an even higher medical risk to the
health and life of women, with the relative risk increasing exponentially at later
gestational ages after eight (8) weeks gestational age,” id. § 39-15-214(a)(44); that
abortion has been used for discriminatory and eugenic purposes in Tennessee and
undermines the integrity and public respect of the medical profession, id. § 39-15-
214(a)(64)-(69). Section 216 was intended to address those harms and to further
unborn child’s development. Id. § 39-15-216(c)(1). When the gestational age of the
unborn child is six weeks or older, the physician must “affirmatively determine[]
4
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 12 (12 of 85)
and record[] in the pregnant woman’s medical record that, in the physician’s good
faith medical judgment, the unborn child does not have a fetal heartbeat at the time
“shall utilize generally accepted standards of medical practice using current medical
technology and methodology applicable to the gestational age of the unborn child
heartbeat.” Id. Additional restrictions apply at 8, 10, 12, 15, 18, 20, 21, 22, 23, and
judgment, based upon the facts known to the physician at the time, so complicates
serious risk of the substantial and irreversible impairment of a major bodily function
the same affirmative defense used in the Antidiscrimination Provision that this Court
has allowed to go into effect while the appeal is pending. See id. § 39-15-217(e)(1).
5
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 13 (13 of 85)
Plaintiffs alleged that both Section 216 and Section 217: (1) violate the abortion
R. 1, PageID# 30-31; and (2) violate the void-for-vagueness doctrine because their
Once Sections 216 and 217 became law, the district court issued a temporary
injunction, PI Opinion, R. 41, PageID# 727-68; PI Order, R. 42, PageID# 769. The
district court held that Plaintiffs have standing both “to assert the constitutional
rights of their patients and to challenge a law that subjects [abortion providers] to
As relevant here, the district court then held that Plaintiffs were likely to
succeed on their substantive due process challenge to Section 216 because “Casey
1
Plaintiffs also alleged that the Antidiscrimination Provision violates the void-for-
vagueness doctrine because it “fail[s] to give Plaintiffs fair notice of how to comply
with [its] mandates.” Compl. ¶ 125, R. 1, PageID# 31.
6
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 14 (14 of 85)
has established” that “a state may not prohibit abortions before viability.” Id. at
PageID#756. Because the court concluded that the Supreme Court had forbidden
legislatures from “defin[ing] viability by gestational age alone,” it did not consider
the State’s interests or determine to what extent the Timing Provisions burden a
Professional Corp. v. Voinovich, 130 F.3d 187, 205 (6th Cir. 1997), because “a
physician acting in ‘good faith’ may still be held criminally liable if, after the fact,
judgment.” PI Opinion, R. 41, PageID# 763. But the court did not consider whether
any vagueness in the affirmative defense could be cured by severing the term
With those rulings in hand, the district court determined that the “threatened
harm to the State or the public because they lack “a strong interest in enforcing an
2
The district court also concluded that Section 217 is unconstitutionally vague
because a physician “must determine what it means to ‘know’ that his or her patient
is seeking an abortion ‘because of’” the sex, race, or Down syndrome diagnosis of
the unborn child.” PI Opinion, R. 41, PageID# 759.
7
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 15 (15 of 85)
The State appealed and simultaneously asked the district court for a stay
pending appeal, which the court denied. See Notice of Appeal, R. 46, PageID# 793-
94; Mot. for Stay Pending Appeal, R. 47, PageID# 797-802; Mem. Mot. for Stay
Pending Appeal, R. 48, PageID# 803-23; Order Denying Stay, R. 58, PageID# 893.
The State then sought and received a partial stay from this Court allowing the State
to enforce the Antidiscrimination Provision in Section 217. Mot. For Partial Stay,
Dkt. 14; Stay Op., Dkt. 33-2. (The State asked the district court but not this Court
to stay the district court’s ruling on the Timing Provisions in Section 216.)
The Court’s partial stay remained in effect until a divided panel of this Court
affirmed the preliminary injunction on the merits. Panel Op., Dkt. 97-2; Judgment,
97-3. The Court granted the State’s petition for rehearing en banc and then granted
the State’s renewed motion for partial stay of the preliminary injunction regarding
The U.S. Supreme Court issued its opinion in Dobbs this morning. In that
STANDARD OF REVIEW
Benson, 924 F.3d 247, 256 (6th Cir. 2019) (quoting Munaf v. Geren, 553 U.S. 674,
8
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 16 (16 of 85)
689 (2008)), that “may only be awarded upon a clear showing that the plaintiff is
entitled to such relief,” id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008)). Courts consider four factors in determining whether that heavy burden
has been satisfied: “(1) whether the plaintiffs are likely to succeed on the merits,
(2) whether the plaintiffs will suffer irreparable injury in the absence of an
injunction, (3) whether granting the injunction will cause substantial harm to others,
and (4) whether the issuance of the injunction is in the public interest.” Mich. State
fatal to his request for preliminary relief. See id.; Daunt v. Benson, 956 F.3d 396,
421 (6th Cir. 2020). And when, as here, the government is the defendant, “the
these factors can be satisfied when the challenged provisions are constitutional.”
Daunt, 956 F.3d at 422 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
pending appeal: (1) “the likelihood that the party seeking the stay will prevail on the
merits of appeal,” (2) “the likelihood that the moving party will be irreparably
harmed absent a stay,” (3) “the prospect that others will be harmed if the court grants
the stay,” and (4) “the public interest in granting the stay.” Serv. Emps. Int’l Union
Loc. 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (internal quotations omitted).
9
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 17 (17 of 85)
A party seeking reversal of a preliminary injunction must show that the district
Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (quotations
omitted). A district court “necessarily abuses its discretion when it commits an error
of law.” S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d
844, 854 (6th Cir. 2017). And the court’s determination as to likelihood of success
ARGUMENT
This Court should fully stay the preliminary injunction so that the State can
enforce both Section 216 and Section 217 pending the en banc Court’s review on the
challenges to Section 216 because the Supreme Court has expressly overruled Roe
and Casey and returned the power to regulate or prohibit abortion back to the States.
The equities also weigh strongly in favor of a stay because the State and the public
are unquestionably harmed when a valid law is enjoined. That is particularly true
here because the State has a profound interest in protecting the lives of unborn
10
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 18 (18 of 85)
The district court concluded that Plaintiffs are likely to prevail on their claims
that Section 216 (1) violated Casey by prohibiting pre-viability abortions, and
Those conclusions are untenable because (1) the Supreme Court today overruled
Casey, and (2) the en banc Court is likely to rule that the medical-emergency
affirmative defense is not unconstitutionally vague for the same reasons that the full
Court has allowed Section 217, which has the same affirmative defense, to come
into effect pending resolution of the appeal. The State is likely to prevail on appeal.3
For the past forty-nine years, the U.S. Supreme Court barred states from
enforcing abortion laws that are squarely within their power to enact. Cf. Roe, 410
U.S. at 222 (White, J., dissenting) (labeling this “an exercise of raw judicial power”).
That changed today. The district court had held that Plaintiffs were likely to succeed
on their substantive due process challenge to Section 216 because “Casey has
established” that “a state may not prohibit abortions before viability” such as by
3
The State is also likely to prevail if the Plaintiff abortionists lacked third-party
standing to bring their lawsuit on behalf of patients. Dobbs cast serious doubt on
June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020): the Dobbs majority
noted that “Roe and Casey have led to the distortion of many important but unrelated
legal doctrines,” and listed June Medical as one of the cases that “ignored the Court’s
third-party standing doctrine.” Dobbs, slip op. at 63 & n.61.
11
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 19 (19 of 85)
prohibiting abortions after with Timing Provisions based on “gestational age alone,”
undue-burden standard, the Supreme Court has instructed lower courts to apply
abortions after the child reaches 15 weeks gestational age. Dobbs, slip op. at 77-78.
Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th 478, 483 (6th Cir. 2021) (en banc)
(quotation marks omitted). “All that matters” under this standard “is whether the
state conceivably had a rational basis to enact the legislation.” Id. The State’s
rationales need not be supported with evidence and are not “subject to courtroom
fact-finding.” Id. at 484 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
judgments.’” Id. at 483 (quoting Preterm-Cleveland v. McCloud, 994 F.3d 513, 525
(6th Cir. 2021) (en banc)). “And they must defer to a state’s judgment that there is
interests in protecting unborn children, protecting the physical and mental health of
12
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 20 (20 of 85)
of unborn children under Tennessee law, protecting the integrity and ethics of the
medical profession, and preventing discrimination. See Tenn. Code Ann. § 39-15-
214(a)(70)-(77).
Dobbs expressly held that many of the same reasons the Tennessee legislature
provided for enacting Section 216 justified Mississippi’s 15-week gestational age
respect for and preservation of prenatal life at all stages of development; the
profession; the mitigation of fetal pain; and the prevention of discrimination on the
Plaintiffs no doubt might “argue that the factual record does not support
Tennessee’s rationale[s]. But that turns the rational basis standard on its head.”
Bristol Reg’l Med. Ctr., 7 F.4th at 484. The State “has no obligation to produce
evidence to sustain the rationality of its action.” Id. (quoting TriHealth, Inc. v. Bd.
of Comm’rs, Hamilton Cnty., 430 F.3d 783, 790 (6th Cir. 2005)). Under this highly
“is not subject to courtroom fact-finding.” Id. at 483 (quoting Beach Commc’ns,
Inc., 508 U.S. at 315). Plaintiffs cannot carry their burden “to negative every
13
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 21 (21 of 85)
conceivable basis which might support” Section 216, so their substantive due
process challenge cannot succeed under rational-basis review. Id. at 484 (quoting
than the ordinary version that applies to “other health and welfare laws,” Dobbs, slip
op. at 77, the State has already provided ample evidence in this case that the Timing
Provisions of Section 216 advance the State’s interests. Each of the restrictions,
from fetal heartbeat to 24 weeks, furthers the State’s interests in protecting unborn
life, the integrity of the medical profession, maternal health, and preventing
discrimination.
obligation to heal rather than harm. See Curlin Decl. ¶ 11, R. 27-2, PageID#383.
And abortions “pose a risk” to the mother’s health at any gestational age, with the
“relative risk increasing exponentially after” 8 weeks. Tenn. Code Ann. § 39-15-
the State further its interest in preventing discrimination, abortion has long served
14
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 22 (22 of 85)
eugenic ends even when an aborted child’s mother does not have that intent. See id.
merely hypothetical.” (quoting Box v. Planned Parenthood of Ind. & Ky., Inc., 139
period. For fetal pain, an unborn child “develops neural circuitry capable of
abortion commonly used after 15 weeks involves grabbing the child with forceps in
the uterus, pulling it back through the cervix and vagina, tearing the child apart, and
“evacuating” the dead child’s body “piece by piece . . . until it has been completely
Some may disagree with Tennessee’s policy judgment, but the Timing
The district court also enjoined Sections 216 and 217 based on its conclusion
vague under Voinovich. But Voinovich was wrongly decided and should be
preliminarily enjoin the Timing Provisions of Section 216, just as this Court has
allowed the Antidiscrimination Provision of Section 217 to come into effect with the
determine “in good faith and in the exercise of reasonable medical judgment whether
an emergency exists.” 130 F.3d at 204 (quotations omitted). This Court concluded
vague, because physicians cannot know under which their conduct will ultimately
Franklin, 439 U.S. 379 (1979). Id. at 204. Colautti held that a law requiring a
was “unclear whether the statute import[ed] a purely subjective standard” or instead
a “mixed subjective and objective standard.” 439 U.S. at 391. That the law lacked
that Colautti “did not consider whether a mixed standard would be unconstitutional,”
16
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 24 (24 of 85)
but nevertheless “f[ound] Colautti strongly indicative of the [Supreme] Court’s view
that in this area of the law, scienter requirements are particularly important.” 130
F.3d at 204-05.
Voinovich has been rightly and roundly criticized. Judge Boggs called the
panel’s reliance on Colautti “misplaced” since the Supreme Court had “specifically
Id. at 216 (Boggs, J., dissenting). And he explained that there is “nothing vague, or
faith and reasonableness.” Id. Justice Thomas, joined by Chief Justice Rehnquist
found the challenged Ohio law, which “plainly impose[d] both a subjective and
in Colautti. Voinovich v. Women’s Med. Pro. Corp., 523 U.S. 1036, 1348-49 (1998)
(Thomas, J., dissenting from the denial of certiorari). The Seventh Circuit has
requirement. Karlin v. Foust, 188 F.3d 446, 462-63 (7th Cir. 1999); see also Hope
Clinic v. Ryan, 195 F.3d 857, 866 (7th Cir. 1999) (en banc) (Easterbrook, J.).
17
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 25 (25 of 85)
Before the Supreme Court’s decision in Dobbs, the en banc Court had ample
emergency exception. But even if the Court were reluctant to overrule Voinovich
due to Colautti, the Dobbs majority now expressly disagrees with the portions of
Colautti that Voinovich relied upon. Dobbs, slip op. at 54 (negatively citing Colautti,
still provided no basis for the district court to facially enjoin the Timing Provisions
at issue in Voinovich and the one here. The one at issue in Voinovich was an
exception to the definition of the crime. See Ohio Rev. Code Ann. § 2919.17(A)(1)
statute defin[es] the criminal offense with sufficient definiteness.” United States v.
Lopez, 929 F.3d 783, 784 (6th Cir. 2019) (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)). An affirmative defense is not part of the definition of the crime,
18
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 26 (26 of 85)
the void-for-vagueness doctrine. See United States v. Christie, 825 F.3d 1048, 1065
Second, this Court made clear in Preterm-Cleveland that “facial attacks are
not the proper procedure for challenging the lack of a health exception.” 994 F.3d
vague, they must rely on as-applied challenges to “‘protect the health of the woman
if it can be shown in discrete and well-defined instances’ her health or life is at risk.”
Third, at the very least, the district court should have “sever[ed] the
216 and 217 while leaving “the remainder intact.” Ayotte v. Planned Parenthood of
N. New England, 546 U.S. 320, 328-29 (2006). In Tennessee,4 the “doctrine of
elision allows a court, under appropriate circumstances when consistent with the
S.W.2d 823, 830 (Tenn. 1994). The Tennessee legislature undoubtedly would have
4
“Whether a portion of a state’s statute is severable is determined by the law of that
state.” Byrd v. Tenn. Wine & Spirits Retailers Ass’n, 883 F.3d 608, 626 (6th Cir.
2018) (internal quotations omitted).
19
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 27 (27 of 85)
complete invalidation of Sections 216 and 217. Both sections contain broad
which “evidence an intent on the part of the legislature to have the valid parts of the
statute[s] in force if some other portion of the statute has been declared
unconstitutional,” Gibson Cnty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551
(Tenn. 1985).
law capable of enforcement and fairly answering the object of its passage.” Id. The
which is the standard already employed in other Tennessee abortion regulations. See
The district court never considered whether severance was appropriate. That
failure was an abuse of discretion and is yet another reason that the State is likely to
succeed on appeal. See Leavitt v. Jane L., 518 U.S. 137, 143-46 (1996).
success infected its weighing of the equities, leading it to conclude that enforcement
20
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 28 (28 of 85)
of the Timing Provisions would harm Plaintiffs and the public interest by violating
the Constitution. See PI Opinion, R. 41, PageID # 766-67. But Section 216 is not
unconstitutional, as Dobbs has made clear, so allowing the law to remain enjoined
harms the State and the public interest by preventing the State “from effectuating
statutes enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301
(2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)); see also
Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1011 (2022)
(“Paramount among the States’ retained sovereign powers is the power to enact and
The reason for this emergency motion is clear: Each day this Court allows
the injunction to remain in place is another day that the lives of unborn Tennesseans
are at risk. The CEO and president of one Plaintiff has publicly stated that they “will
continue to provide abortion care up to the very minute when we can no longer do
https://bit.ly/3HoiHb4. Plaintiffs will not suffer imminent harm from a stay because,
under Dobbs, they have no right to violate Section 216. And Plaintiffs are not
publicly stated early last month that they anticipated this motion to stay the
21
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 29 (29 of 85)
president as saying “we have a six-week ban also and the Sixth Circuit could lift that
injunction immediately after the Supreme Court releases its final decision”).
It is true that change is imminent. With the overruling of Roe and Casey,
Tennessee has another law that will come into effect 30 days from now. See Tenn.
Code Ann. § 39-15-213. But under Tennessee law, which specifically provides that
there is no constitutional right to abortion, Tenn. Const. art. I, § 36, Section 216 is
heartbeat. The State requests that this Court allow Section 216 to come into effect
pending resolution of the appeal so that the State may begin the important work of
22
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 30 (30 of 85)
CONCLUSION
Defendants respectfully request that this Court fully stay the preliminary
injunction so that the State can enforce both Section 216 and Section 217. Dobbs
makes clear that Section 216 is constitutional. The State proposes that Plaintiffs,
who publicly stated a month ago that they anticipated this motion, file their
response by 2:30 PM Eastern Time today. Because any delay costs the lives of
Tennessee children, the State asks the Court to grant the motion as soon as
possible. If the Court does not act by 4 PM Eastern Time today, the State plans to
Respectfully submitted,
ANDRÉE S. BLUMSTEIN
Solicitor General
TRAVIS J. ROYER
Honors Fellow
23
Case: 20-5969 Document: 130-1 Filed: 06/24/2022 Page: 31 (31 of 85)
CERTIFICATE OF COMPLIANCE
I certify that this motion complies with the type-volume limitation of Fed. R.
App. P. 27(d) because it contains 5,186 words, excluding the parts exempted by Fed.
R. App. P. 32(f).
This brief also complies with the typeface and type style requirements of Fed.
CERTIFICATE OF SERVICE
the Bar of this Court, certify that, on June 24, 2022, a copy of the Motion for Stay
appellate CM/ECF system. I further certify that all parties required to be served
25
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 1 (33 of 85)
MEMORANDUM
Pending before the Court are Plaintiffs’ Motion for Temporary Restraining Order and/or
Preliminary Injunction (Doc. No. 6), Defendants’ Response (Doc. No. 27), and Plaintiffs’ Reply
(Doc. No. 34). The Court issued a Temporary Restraining Order on July 13, 2020 (Doc. No. 33),
which expires on July 27, 2020, at noon. The parties filed a Joint Notification Regarding
Preliminary Injunction Hearing (Doc. No. 39) on July 17, 2020, stating they have jointly agreed
to submit the Motion to the Court based on the filings alone, without a hearing. Plaintiffs’
I. Introduction
The judiciary ... has ... no direction either of the strength or of the wealth of the
society and can take no active resolution whatever. It may truly be said to have
neither Force nor Will, but merely judgment ... The Federalist No. 78
Tennessee lawmakers recently passed laws that expose healthcare providers to criminal
sanctions for performing abortions under certain circumstances. Plaintiffs ask the Court to
prevent the State from enforcing those new laws on the basis that they are unconstitutional. The
State argues that the laws are constitutional and should be allowed to be enforced.
The Supreme Court found in Roe v. Wade, 410 U.S. 113 (1973), that a woman's decision
to have an abortion was constitutionally protected under the right to privacy found – not
expressly, but implicitly among various provisions – in the U.S. Constitution. That central
holding was affirmed by a plurality in Planned Parenthood of Southeastern Penn. v. Casey, 505
U.S. 833 (1992). In the almost thirty years since Casey, the Court – often by close votes or in
plurality opinions – has not deviated from its framework that centers around the questions of
fetal viability and when state regulation constitutes an "undue burden" on a woman's right to an
To be sure, the Roe and Casey opinions did not disclaim any state interest in regulating
abortions. Indeed, Casey affirmed that “there is a substantial state interest in potential life
throughout the pregnancy” and found constitutional several state regulations at issue in that case.
Casey, 505 U.S. at 876. And states continue to pass laws concerning abortion and argue policy
concerning that procedure, as is their right, which then become subject to judicial scrutiny. As
Justice Scalia noted in his Casey partial concurrence, Roe created a "mandate for abortion on
demand [that] destroyed the compromises of the past, rendered compromise impossible for the
future, and required the entire issue to be resolved uniformly, at the national level." Casey, 505
U.S. at 995.
Casey established an “undue burden” framework for courts to use when balancing a
woman’s right to a pre-viability abortion and the state’s interests: “A finding of an undue burden
is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 877
1
That central holding was affirmed recently by a plurality opinion in June Medical Services, LLC v.
Russo, Nos. 18-1323 & 18-1460, 2020 WL 3492640 (June 29, 2020).
2
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 2 of 42 PageID #: 728
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 3 (35 of 85)
(emphasis added). This Court is duty bound to apply the holding of Casey to the facts of this
case.2
This Court leaves debate about Roe, Casey and their progeny to the learned jurists on the
Supreme Court, legal scholars, legislators and the public — a debate that remains lively and
important. The Tennessee General Assembly passed, and Governor Lee ultimately signed, a law
that criminalizes the provision of abortions in Tennessee once a fetal heartbeat3 is detected or
when an abortion is sought for specified reasons. Applying binding Supreme Court precedent
and the factors required for the extraordinary remedy of an injunction under Federal Rule of
Civil Procedure 65, the Court concludes that an injunction should issue.
Plaintiffs request the Court issue a preliminary injunction prohibiting the enforcement of
two provisions relating to pre-viability abortions recently enacted by the Tennessee General
Assembly in House Bill 2263/Senate Bill 2196 (“HB 2263”). The two provisions in HB 2263
challenged by Plaintiffs are to be codified at Tennessee Code Annotated Sections 39-15-216 and
39-15-217.4
2
“[V]ertical stare decisis is absolute, as it must be in a hierarchical system with ‘one supreme Court.’”
Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5 (2020) (Kavanaugh, J., concurring in part). As former
Chief Justice Rehnquist correctly observed, "unless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower federal courts no matter how misguided
the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370, 375 (1982).
3
Plaintiffs refer to the “cardiac activity” of a fetus. Differing semantics are common in the abortion
debate. But given that the challenged Tennessee statute uses the term “fetal heartbeat,” the Court will use
the terms of the statute at issue.
4
In addition to Sections 39-15-216 and -217, HB 2263 adds Section 39-15-214, which includes extensive
legislative findings; Section 39-15-215, which includes definitions and other provisions; and 39-15-218,
which regulates abortions in which mifepristone is used. Plaintiffs are not challenging these provisions.
3
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 3 of 42 PageID #: 729
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 4 (36 of 85)
Section 216(c)(1) provides that a person who performs or induces an abortion “upon a
pregnant woman whose unborn child has a fetal heartbeat” commits a Class C felony.5 Section
216(c)(2) criminalizes abortions when the “unborn child is six weeks gestational age6 or older”
unless there is no “fetal heartbeat.” Sections (c)(3) through (12) criminalize the provision of an
abortion at various intervals from eight weeks through 24 weeks gestational age. Section 216(b)
criminalizes abortions performed without first determining the gestational age of the unborn
child. Section 216(e) provides an affirmative defense to criminal prosecution where “in the
physician’s reasonable medical judgment, a medical emergency prevented compliance with the
provision,” and certain other conditions are satisfied. “Medical emergency” is defined as “a
condition that, in the physician's good faith medical judgment, based upon the facts known to the
physician at the time, so complicates the woman's pregnancy as to necessitate the immediate
performance or inducement of an abortion in order to prevent the death of the pregnant woman
or to avoid a serious risk of the substantial and irreversible impairment of a major bodily
function of the pregnant woman that delay in the performance or inducement of the abortion
criminally charged under this section must report the charge to the board of medical examiners.
Tenn. Code Ann. § 39-15-216(g). Section 216(h) contemplates the severability of any provision
found to be unenforceable, leaving any enforceable provisions intact. Plaintiffs refer to the
5
Class C felonies are punishable by three to 15 years of imprisonment and a fine of up to $10,000.
Tenn. Code Ann. § 40-35-111(b)(3).
6
“Gestational age” is defined as “the age of an unborn child as calculated from the first day of the last
menstrual period of a pregnant woman.” Tenn. Code Ann. §§ 39-15-216(a)(3); 39-15-211(a)(2).
7
“Medical emergency” does not include “a claim or diagnosis related to the woman’s mental health or a
claim or diagnosis that the woman will engage in conduct which would result in her death or substantial
and irreversible impairment of a major bodily function.” Tenn. Code Ann. § 39-15-216(a)(4).
4
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 4 of 42 PageID #: 730
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 5 (37 of 85)
provisions of Section 216 as the “Cascading Bans,” and Defendants refer to them as the
“Gestational-Age Provisions.”
Sections 217(b) and (c) provide that a person who performs or induces an abortion upon a
pregnant woman “if the person knows that the woman is seeking the abortion because of the sex
of the unborn child” or the “race of the unborn child” commits a Class C felony. Section 217(d)
criminalizes the provision of an abortion “if the person knows that the woman is seeking the
abortion because of a prenatal diagnosis, test, or screening indicating Down syndrome or the
potential for Down syndrome in the unborn child.” Section 217(e) provides an affirmative
defense to criminal prosecution where “in the physician’s reasonable medical judgment, a
medical emergency prevented compliance with the provision,” and certain other conditions are
satisfied. “Medical emergency” is defined the same as in Section 216(a)(4). Tenn. Code Ann. §
39-15-217(a)(3). A physician who is criminally charged under this section must report the charge
to the board of medical examiners. Tenn. Code Ann. § 39-15-217(h). Section 216(i)
enforceable provisions intact. Plaintiffs refer to the provisions of Section 217 as the “Reason
Because Tennessee law currently prohibits abortion after viability, Tenn. Code Ann. §
39-15-211(b)(1), the prohibitions in Sections 216 and 217 apply to pre-viability abortions.
“Viability,” for purposes of HB 2263 and under current Tennessee law, is defined as “that stage
of fetal development when the unborn child is capable of sustained survival outside of the womb,
Tennessee law currently creates a rebuttal presumption of viability at 24 weeks gestational age.
Tenn. Code Ann. § 39-15-211(b)(5). Tennessee law also currently prohibits abortion, except in a
5
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 5 of 42 PageID #: 731
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 6 (38 of 85)
medical emergency, after the beginning of the twentieth week of gestational age, unless the
physician determines the unborn child is not viable, as measured by gestational age, weight,
biparietal diameter, “and other factors that the physician in the physician’s good faith medical
judgment would consider in determining whether an unborn child is viable.” Tenn. Code Ann. §
39-15-212(a).
Tennessee and North Mississippi, Knoxville Center for Reproductive Health, and carafem, all
health care centers providing reproductive health services, including abortions; as well as Dr.
Kimberly Looney and Dr. Nikki Zite, physicians who perform abortions. (Doc. No. 1).
Defendants are Attorney General Herbert H. Slatery III; Dr. Lisa Piercey, Commissioner of the
Tennessee Department of Health; Dr. Rene Saunders, Chair of the Board for Licensing Health
Care Facilities; Dr. W. Reeves Johnson, Jr., President of the Tennessee Board of Medical
Examiners; District Attorney General for Knox County Amy Weirich; District Attorney General
for Nashville Glenn R. Funk; District Attorney General for Knox County Charme P. Allen; and
Plaintiffs allege Sections 216 and 217 are unconstitutional bans on pre-viability abortions
in violation of Fourteenth Amendment substantive due process. (Id.) Plaintiffs also allege
Section 217 is unconstitutionally void for vagueness. (Id.) In addition, Plaintiffs allege Sections
216 and 217 are unconstitutional because they lack a valid medical-emergency exception.
Plaintiffs argue the medical-emergency affirmative defense provisions are invalid because they
To support their requests for injunctive relief, Plaintiffs filed the Declarations of Dr.
Looney (Doc. No. 8-1), Mary Norton, M.D. (Doc. No. 8-2), Dr. Zite (Doc. No. 8-3), Corinne
6
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 6 of 42 PageID #: 732
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 7 (39 of 85)
Rovetti, FNP, APRN-BC (Doc. No. 8-4), Rebecca Terrell (Doc. No. 8-5), and Melissa Grant
Dr. Looney, a board-certified obstetrician and gynecologist, is the Chief Medical Officer
of Planned Parenthood Tennessee and North Mississippi (“PPTNM”), which operates four health
centers: one in Nashville, one in Knoxville, and two in Memphis. (Doc. No. 8-1 ¶¶ 1-2).
According to Dr. Looney, the centers provide a wide range of reproductive and sexual health
services to patients, including wellness visits, cancer screenings, birth control counseling,
adoption referral, miscarriage management, and abortion procedures. (Id. ¶ 2). Dr. Looney states
that there are two main methods of abortion: medication abortion and procedural, or “surgical,”
abortion. (Id. ¶ 14). All four centers provide medication abortions through 11 weeks, as
measured from the first day of the patient’s last menstrual period (“LMP”), and two of the
centers (Nashville and Memphis) provide procedural abortions, through 19 weeks, 6 days LMP.
(Id. ¶¶ 2, 18). A full-term pregnancy is approximately 40 weeks LMP. (Id. ¶ 2) Dr. Looney
opines that the “Cascading Bans” and the “Reasons Bans” in the Act “will effectively eliminate
Dr. Looney states that, at six weeks of fetal development, the heartbeat is simply a group
of cells with electrical activity and an embryo does not develop into a fetus until nine weeks
LMP. (Id. ¶ 9). She opines that no fetus is viable at 20 weeks LMP or at any earlier gestational
age, that viability occurs weeks later, and that viability must be determined on a case-by-case
basis. (Id. ¶¶ 19, 20). According to Dr. Looney, PPTNM performed 4,742 abortions in Tennessee
in 2019, including 4,651 at or after 6 weeks LMP. (Id. ¶ 21). In January through March 2020,
7
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 7 of 42 PageID #: 733
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 8 (40 of 85)
PPTNM performed 1,700 abortions in Tennessee, including 1,649 at or after 6 weeks LMP. (Id.
¶ 22).
If the “Cascading Bans” take effect, Dr. Looney states, PPTNM will be forced to stop
providing pre-viability abortion procedures in order to avoid criminal, monetary, and medical
licensure penalties for its physicians and potential licensure actions against the health centers
themselves. (Id. ¶ 23). Dr. Looney states that the overwhelming majority of abortions in
Tennessee occur during the first trimester. (Id. ¶ 25). If abortion is banned after 6 weeks LMP, a
patient would have a mere two weeks after a missed period to learn they are pregnant, confirm
that the pregnancy is in the uterus, decide whether to have an abortion, and seek and obtain an
abortion. (Id. ¶ 27). The majority of PPTNM’s patients, according to Dr. Looney, are low wage-
earners and people of color facing daunting economic and logistical challenges to abortions. (Id.
¶¶ 30-32). Dr. Looney points out that patients are already required to make two separate trips to
the health center, at least 48 hours apart, under current law. (Id. ¶ 33). Dr. Looney states that
some patients seek an abortion later in their pregnancies because of maternal health conditions
that worsen during the course of pregnancy, or they discover a fetal condition or diagnosis,
prosecution, relying on the affirmative defense “that may or may not be accepted depending on
whether the physician’s good faith medical judgment is deemed ‘reasonable’ by others after the
fact.” (Id. ¶ 37). This is problematic, Dr. Looney states, because “medical emergency situations
are often complex and easily subject to disagreement.” (Id.) Dr. Looney opines that this
uncertainty will likely lead to decisions not to perform abortions or to delay inappropriately the
8
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 8 of 42 PageID #: 734
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 9 (41 of 85)
Dr. Looney states that patients seek abortion for a multitude of complicated and personal
reasons, and although some patients disclose information about their reasons, the medical
providers at PPTNM do not require the patients to do so. (Id. ¶¶ 39-41). According to Dr.
Looney, complying with the “Reasons Ban” is problematic because it is not clear if the banned
reason must be the only reason, the main reason, one of many reasons, or simply a factor the
46. Additionally, there may be instances when patients mention race or sex in
counseling with our staff. For example, some patients inquire about the sex of the
fetus during a pre-abortion ultrasound and in my experience I have found that
some patients who choose abortion want to know the sex of the fetus as part of
their process—not (to my knowledge) because it alters their decision but because
they simply want to know. The Bans discount the amount of effort a pregnant
person puts into their decision and assumes because they have made the decision
to have an abortion that they are disconnected from the pregnancy when in fact
the opposite may be true. It is unclear whether performing an abortion after a
patient makes that inquiry will be deemed an abortion ‘because of’ the sex of the
fetus. In other cases, if race comes up, typically the patient desires the abortion
because they fear racism from their families and communities. It is unclear how
the law might be implicated if a patient discusses such a situation with PPTNM
staff.
47. We have also seen older patients who express that they have older children, or
that it is not the right time in their life to have more children—and have also
expressed concern for the health of the pregnancy due to the patient’s age,
including due to a potential fetal diagnosis, including Down syndrome. It is
unclear if these patients would be deemed to be seeking an abortion ‘because of’ a
potential for Down syndrome, as this ban is phrased.
48. We also see patients who may mention a concern based on maternal age over
a possible fetal Down syndrome diagnosis or who may come to us with an early
indication of a possible fetal Down syndrome diagnosis. I don’t know if such
instances or conversations mean that the patient is seeking an abortion ‘because
of’ a possible diagnosis of Down syndrome.
49. If the Reason Bans take effect, given this lack of clarity and the fact that our
physicians are at risk of up to 15 years in prison along with up to $10,000 in fines,
whenever race, sex, or the potential for fetal conditions like Down syndrome are
ever raised by the patient, PPTNM will be forced to stop providing safe and
effective pre-viability abortion care that our patients want, need, and may not be
able to access elsewhere.
9
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 9 of 42 PageID #: 735
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 10 (42 of 85)
(Id. ¶¶ 46-49).
maternal-fetal medicine, and a professor in those fields. (Doc. No. 8-2 ¶¶ 1-2). Dr. Norton states
that her medical practice focuses on women whose pregnancies are classified as high-risk. (Id. ¶
3). Dr. Norton opines that the “Cascading Bans” prohibit physicians from performing abortions
before viability. (Id. ¶¶ 9, 20). Dr. Norton defines “viable” as meaning “in the judgment of the
attending physician on the particular facts of the case before him or her, there is a reasonable
likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.”
(Id. ¶ 8). Dr. Norton states that, although there have been rare, exceptional cases where an infant
born between 21.4 and 23 weeks has survived, “these are outliers that do not reflect a reasonable
likelihood of sustained survival outside the womb.” (Id.) “[U]nder optimal circumstances and
with extraordinary medical intervention,” Dr. Norton states, a small percentage of infants born
between 23 and 24 weeks may survive, but fetal and maternal health conditions can significantly
reduce or eliminate the likelihood of survival for the fetus. (Id.) According to Dr. Norton, it is
very rare for an infant born at 23 to 24 weeks LMP to survive even with the highest level of care.
(Id. ¶ 12). In Dr. Norton’s opinion, the “legislative findings” in HB 2263 (Section 214) are
Tennessee Graduate School of Medicine within the Department of Obstetrics and Gynecology,
and Vice Chair of Education and Advocacy for the Department. (Doc. No. 8-3 ¶ 1). Dr. Zite
states that, as part of her practice, she provides pre-viability pregnancy termination, including
after 19.6 weeks LMP, in the hospital when the patient and/or fetus are in extremely grave
circumstances. (Id. ¶¶ 8-11). Those circumstances include cases in which “the fetus lacks organs
10
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 10 of 42 PageID #: 736
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 11 (43 of 85)
or organs that sufficiently develop for survival, such as when a fetus would be born without
kidneys or with lungs that never develop; or if the fetus has anencephaly, a lack of brain
development, a hypoplastic left heart, catastrophic amniotic band syndrome, and severe skeletal
dysplasia.” (Id. ¶ 11). Pursuant to hospital practice, Dr. Zite states, she does not perform
terminations for pregnancies solely on the basis of a diagnosis of Down syndrome. (Id. ¶ 12). In
cases where grave medical circumstances exist, and the fetus also has Down syndrome, Dr. Zite
states that it is unclear to her whether such an abortion would be prohibited under the “Reasons
Ban.” (Id. ¶ 12). As for grave maternal conditions, Dr. Zite states, hospital policy requires that
two physicians agree that the patient has a sufficiently “severe” health condition, such as severe
preeclampsia, maternal heart failure, inevitable abortion, and premature rupture of the
membranes. (Id. ¶ 15). If the fetus is determined to be viable, the fetus will be delivered and “all
According to Dr. Zite, the “Cascades Ban” will criminalize all abortion procedures she
provides unless it qualifies as a “medical emergency” under the statute. (Id. ¶ 17). Dr. Zite opines
that “[t]here are myriad conditions that could place the pregnant person’s health at serious risk,
which may not qualify for the limited exception because the condition is not acute enough to
‘necessitate’ an ‘immediate’ abortion.” (Id. ¶ 18). Dr. Zite also states that it is unclear whether
the affirmative defense will apply “only based on my good faith determination that a medical
emergency existed or whether I will also have to prove that my determination was reasonable.”
(Id. ¶ 19). The uncertainty caused by the medical-emergency defense, according to Dr. Zite, will
11
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 11 of 42 PageID #: 737
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 12 (44 of 85)
22. Some patients who need a termination due to maternal health conditions will
be unable to access care unless they deteriorate to the point where the abortion
becomes immediately necessary. The fear of post-hoc disagreement—and
prosecution—will intimidate physicians into not providing abortion care at all,
even in the limited circumstances in which we are currently able to provide pre-
viability abortion care at the hospital for maternal health indications. For example,
presently, we would perform a termination for a woman experiencing heart failure
when there is a high likelihood that the damage to her heart will become
permanent. Under the Bans, I would be afraid to provide a termination unless
permanent damage to the heart or death is imminent.
Ms. Rovetti is a family nurse practitioner and Co-Director of the Knoxville Center for
Reproductive Health (“KCRH”). (Doc. No. 8-4 ¶ 1). According to Ms. Rovetti, KCRH provides
days LMP, and medication abortions up to 10 weeks and 6 days LMP. (Id. ¶ 2) KCRH is one of
two clinics in Knoxville that provide abortions, and the only clinic that provides both procedural
and medication abortions. (Id.) Ms. Rovetti states that the “Cascading Bans” will make it
impossible to provide pre-viability abortions to nearly all KCRH patients. (Id. ¶ 9). A small
percentage of KCRH patients receive an abortion prior to 6 weeks LMP, Ms. Rovetti states, and
many do not realize they are pregnant until well after 4 weeks LMP. (Id. ¶¶ 13-14). As a result of
Tennessee’s telemedicine ban and 48-hour waiting period, “patients are often pushed well
12
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 12 of 42 PageID #: 738
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 13 (45 of 85)
beyond 4 weeks before they are able to arrange for the requisite time off of work, childcare, and
transportation to the clinic.” (Id. ¶ 14). If patients are unable to obtain an abortion in Tennessee
because of the Cascading Bans, Ms. Rovetti states, they will suffer real, lasting harm, because
most are poor or low-income, and will face logistical and financial impediments to travelling out
Ms. Rovetti states that the “Reasons Bans” will prohibit some KCRH patients from
accessing pre-viability abortions. (Id. ¶ 10). Ms. Rovetti agrees with Dr. Looney that it is not
clear if “because of” means the only reason, the main reason, one of many reasons, or simply a
factor the individual considered. (Id. ¶ 23). It is also unclear if the statute applies when patients
mention their advanced age or family members’ racial sentiments during counseling sessions.
(Id.) If these concerns are ever raised or discovered by KCRH staff, Ms. Rovetti states that
abortions will not be provided because physicians risk up to 15 years in prison, $10,000 in fines,
and the possibility that the clinic could face a licensure action. (Id. ¶¶ 24, 22-29).
Ms. Terrell is the Executive Director of CHOICES: Memphis Center for Reproductive
Health (“Choices Memphis”). (Doc. No. 8-5 ¶ 1). Choices Memphis provides the full spectrum
of reproductive healthcare, including abortion, birthing and midwifery care, and postpartum care.
(Id. ¶ 3). Choices Memphis provides medication abortion up to 11 weeks LMP and procedural
abortion up to 16 weeks LMP. (Id. ¶ 8). Ms. Terrell opines that the “Cascading Bans” will
prohibit the vast majority of the clinic’s patients from receiving an abortion at all. (Id. ¶ 7).
According to Ms. Terrell, in 2019, only 4.9% of patients received an abortion prior to 6 weeks
LMP, and in the first quarter of 2020, only 6.6% were performed prior to 6 weeks LMP. (Id. ¶
14). Ninety-five percent of patients received abortions at or after six weeks LMP in 2019. (Id.)
13
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 13 of 42 PageID #: 739
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 14 (46 of 85)
Given that most pregnancies around six weeks LMP have some cardiac activity, the large
majority of the clinic’s patients would be completely barred from accessing abortion. (Id.)
Ms. Terrell opines that the “Reasons Bans” will also prohibit patients from obtaining
abortions. (Id. ¶ 7). Ms. Terrell states that it would be “challenging, if not impossible, to fully
comprehend a patient’s reasons for terminating a pregnancy because we can never be in that
patient’s shoes.” (Id. ¶ 16). Ms. Terrell states that she does not understand whether the statute’s
words “because of” means the only reason, the main reason, one of many reasons or simply a
20. There may be instances when patients mention race or sex in counseling with
our staff. For example, although rare, some patients inquire about the sex of the
fetus when they have a pre-abortion ultrasound performed. In other cases, we
have seen women experiencing racism from their families around a biracial
relationship who have discussed their situation with us. It is not clear how the law
might be implicated if a patient discusses such a situation with a patient educator.
21. We have seen patients of advanced maternal age who, among many reasons
they express—existing older children, not the right time in life—have also said
they are concerned they might have a complicated pregnancy, including the
potential diagnosis of a fetal condition. It is unclear to us if this woman would be
seeking an abortion ‘because of’ a potential for a Down syndrome diagnosis.
22. And, even when those issues are not raised by our patients, it is not clear to us
what it means ‘to know’ that an abortion is being sought ‘because of’ one of the
prohibited reasons. For example, if we have a patient whose chart reflects a recent
visit to a Maternal Fetal Medicine specialist—a physician who might diagnose
fetal conditions like Down syndrome—is that enough to ‘know’ that the patient is
terminating because of Down syndrome or the potential for it? We have had
patients specifically referred to us because they have a diagnosis of chromosomal
abnormalities.
(Id. ¶¶ 19, 20-22). Ms. Terrell agrees with Dr. Looney and Ms. Rovetti that, given this lack of
clarity, and the criminal sanctions faced by physicians, abortions will not be provided when a
patient’s chart or circumstances surrounding the patient’s visit raise the issue of race, sex, or the
14
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 14 of 42 PageID #: 740
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 15 (47 of 85)
Ms. Terrell opines that the Act will cause the clinic’s patients severe and permanent
harm. (Id. ¶¶ 24-27). According to Ms. Terrell, the large majority of the clinic’s patients are poor
or low-income and already parents, and struggle to access transportation, childcare, and time off
work, such that most will be unable to travel to another state to access abortions if they are
Ms. Grant is the Chief Operations Officer of FemHealth USA, Inc., which does business
as carafem. (Doc. No. 8-6 ¶ 1). Carafem operates a network of health centers, including one
located in Mt. Juliet, Tennessee, that provide information and low-cost options for birth control,
weeks LMP and procedural abortions up to and including 13 weeks and 6 days LMP. (Id. ¶ 2).
Ms. Grant opines that the “Cascading Bans” will prohibit the majority of abortions offered at
carafem. (Id. ¶ 8, 16). The majority of carafem’s abortion patients are at or after 7 weeks LMP.
(Id. ¶ 16). Ms. Grant points out that a significant percentage of carafem’s patients are low-
income and people of color for whom costs and other logistical challenges will likely preclude
Ms. Grant opines that the “Reason Bans” are vague, which forces providers to assume the
most aggressive reading of the statute to ensure they do not face severe criminal sanctions:
21. For example, I do not understand what it means for the abortion to be sought
‘because of’ race, sex, or diagnosis of or potential for Down syndrome—whether
it means the only reason, the main reason, one of many reasons, or simply a factor
that the individual considered.
22. Furthermore, typically, patients do not specifically identify the race, sex, or
indication of Down syndrome as among their reasons for wanting to terminate
their pregnancy. However, carafem patients have mentioned their advanced age
and an increased likelihood of Down syndrome in the course of their counseling
session. Similarly, patients have also mentioned family members’ sentiments on
racial matters or raised the sex of the fetus during counseling sessions. Because
we do not offer care after 13.6 weeks LMP, I am not aware that any of our
15
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 15 of 42 PageID #: 741
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 16 (48 of 85)
(Id. ¶¶ 20-22). As with the other Declarants, Ms. Grant states that, given the lack of clarity and
the risk of severe sanctions, the clinic will be unable to provide abortions if issues regarding the
sex, race, or potential for Down syndrome are ever discovered by the clinic’s staff. (Id. ¶ 23).
M.D. (Doc. No. 27-2), Dennis M. Sullivan, M.D. (Doc. No. 27-3), O. Carter Snead, J.D. (Doc.
No. 27-4), Amelia Platte (Doc. No. 27-5), Dana Bythewood (Doc. No. 27-6), Maureen L. Condic
(Doc. No. 27-7), Robin Pierucci, M.D., M.A. (Doc. No. 27-8), and Vanessa A. Lefler (Doc. No.
27-9).
Dr. Curlin, a physician and bioethicist, opines that Plaintiffs’ position that abortion is a
common and safe medical procedure like any other, is flawed. (Doc. No. 27-2 ¶10). The better-
supported view, Dr. Curlin states, is that “abortion involves intentionally killing a human being
at the fetal stage of development.” (Id.) Under that view, the challenged restrictions are
consistent with well-established norms of medical ethics. (Id.) Indeed, Dr. Curlin states that the
Act will help preserve the integrity of the medical profession. (Id. ¶¶ 48-60).
Dr. Curlin opines that “contemporary policies permitting abortion indicate that some
professional and medical organizations have gone astray ethically . . .” (Id. ¶ 13). In Dr. Curlin’s
view, abortion kills a human fetus because “[i]t is an uncontroversial scientific holding that an
organism is a living thing that has an organized structure . . .” (Id. ¶ 16). There is abundant
16
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 16 of 42 PageID #: 742
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 17 (49 of 85)
evidence of societal consensus, according to Dr. Curlin, that it is reasonable and ethical to show
Dr. Curlin supports the non-discrimination provisions of the Act, stating that abortion
often involves unjustified discrimination, and is “often motivated by implicit judgments about
the quality of life for disabled people.” (Id. ¶ 27; ¶¶ 25-31; 38-47). According to Dr. Curlin,
recent studies estimate that two-thirds of all fetuses diagnosed with Down syndrome in the
United States are aborted, and the proportion is even higher in other countries. (Id. ¶ 42).
The gestational-age provisions are reasonable, Dr. Curlin opines, because “(a) fetuses
with heartbeats are innocent human beings; (b) it is unjust to intentionally kill innocent human
beings even if they are very small and have not yet developed all of their capacities; and (c) the
state has the authority to prohibit the killing of innocent human beings.” (Id. ¶ 32). The
restrictions on abortions after 15 weeks gestation are also supported by the ethical concern for
“killing a fetus in a way that is cruel and inhumane.” (Id. ¶ 34). Dr. Curlin also states that
abortion carries real risks, and sometimes women die from abortions. (Id. ¶ 37).
Dr. Sullivan, a physician, bioethicist, and pharmacist, expresses concern that recent
developments in prenatal testing have led to justifications for induced abortion where certain
genetic abnormalities are found, such as Down syndrome. (Doc. No. 27-3 ¶ 4). According to Dr.
Sullivan, a non-invasive prenatal test “can be used to screen for various genetic abnormalities
and can also determine the sex of the fetus.” (Id.) Dr. Sullivan states that Down syndrome is the
most common chromosomal abnormality today, affecting about one in every 700 babies. (Id. ¶
5). The condition occurs when a child has a partial or complete extra copy of the 21st
chromosome – often called Trisomy 21. (Id.) Dr. Sullivan cites studies revealing that 61 to 91%
of women terminate their pregnancies when Trisomy 21 is discovered on a prenatal test. (Id. ¶ 8).
17
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 17 of 42 PageID #: 743
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 18 (50 of 85)
Dr. Sullivan opines that the medical profession’s bias for abortion after a diagnosis of Down
syndrome is a serious problem. (Id. ¶ 14). The statute’s non-discrimination provisions are
necessary, according to Dr. Sullivan, to protect the most vulnerable. (Id. ¶ 36).
Mr. Snead, an attorney and professor of bioethics and medical ethics, describes the events
giving rise to the National Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research, which “clearly recognized that even unborn children destined to be aborted
have interests that must be respected and honored.” (Doc. No. 27-4 ¶¶ 17, 11-16). That
conclusion, according to Mr. Snead, is reflected in statutes and regulations governing protections
for human subjects of federally funded research, including unborn children. (Id. ¶¶ 18-21). Mr.
foundational principle of American public bioethics, and avoidance of cruel, inhumane, and
Snead further opines that the provisions of the challenged statute seeks to advance these
Amelia Platte, a resident of Wilson County, Tennessee, states that during her pregnancy
with her fourth child, her obstetrician informed her that an ultrasound had revealed markers for
Down syndrome and she had three to four weeks to make a decision about whether the abort the
fetus. (Doc. No. 27-5 ¶¶ 1-3). According to Ms. Platte, neither the obstetrician nor the maternal
fetal medicine provider discussed the positive aspects of having a Down syndrome child, and
they gave her outdated materials about Down syndrome. (Id. ¶¶ 3-4). Ms. Platte states that her
daughter, Penny, was born in 2014 with Down syndrome, and at age 6, is happy and healthy. (Id.
¶ 8).
18
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 18 of 42 PageID #: 744
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 19 (51 of 85)
During a pregnancy in 2016, Mrs. Platte states that testing revealed she had a 70% chance
of having a child with “Trisomy 18.” (Id. ¶ 10). According to Ms. Platte, her health care
providers provided outdated information about the condition, and encouraged her to abort the
fetus. (Id. ¶¶ 10-12). Ms. Platte also states her health care providers pressured her to induce
early, and believes that if she had followed that advice, her baby would not have survived,
because she weighed only 4 lbs. 11 oz. when she was born at 40 weeks and 2 days. (Id. ¶¶ 13-
14).
Dana Bythewood, a resident of Williamson County, Tennessee, states that during her
pregnancy with her daughter, Emily Hope, in 2018, her health care provider advised her prenatal
testing revealed her daughter was 87% likely to have Trisomy 21. (Doc. No. 27-6). A subsequent
ultrasound revealed other medical difficulties, and Ms. Bythewood was offered the option of
terminating the pregnancy more than once, but she declined. (Id. ¶¶ 5-7). According to Ms.
Bythewood, her health care providers never presented her with resources about Down syndrome
and did not present any positive aspects to the condition. (Id. ¶¶ 8-12). Ms. Bythewood
subsequently saw health care providers at Vanderbilt who were more encouraging. (Id. ¶¶ 13-
14). Ms. Bythewood states that Emily is doing well physically, and is a joy and gift to her family
science policy, and ethics. According to Professor Condic, scientific evidence indicates that “by
8-10 weeks post sperm-egg fusion (10-12 weeks as dated from the last menstrual period; LMP),
a human fetus develops neural circuitry capable of detecting and responding to pain.” (Doc. No.
27-7 ¶ 8). “During the period from 12-18 weeks of development (14-20 weeks post LMP),
19
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 19 of 42 PageID #: 745
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 20 (52 of 85)
awareness of pain.” (Id.) Professor Condic states that evidence also strongly supports the
conclusion that cortical connections developing only after 22 weeks are not obligatory for
Professor Condic opines that it is universally accepted that a fetus can detect and respond
to pain by 8 to 10 weeks; the debate is over whether there is a conscious experience of pain,
which she refers to as “suffering.” (Id. ¶ 24). In Professor Condic’s view, the evidence does not
support the conclusion that the fetus does not experience pain in a meaningful sense until the
third trimester. (Id. ¶¶ 24-42; 48-51). According to Professor Condic, research indicates that “our
conscious experience of suffering depends almost entirely on subcortical brain regions that
develop very early in the human fetus.” (Id. ¶ 40). She believes this view is supported by the
clear consensus among professional anesthesiologists who use medications to relieve pain in
Professor Condic disputes Dr. Looney’s Declaration and states that at six weeks LMP,
the heart “has achieved far greater structural and functional sophistication” than “‘a group of
cells with electrical activity.’” (Id. ¶ 52). Professor Condic also disputes the statements of Drs.
Looney and Norton that no fetus is viable at 20 weeks LMP, pointing out that between 23% and
60% of infants born at 22 weeks LMP who receive active hospital treatment survive, many
Dr. Pierucci, board-certified in pediatrics and neonatology, is the medical director of the
NICU at Bronson Children’s Hospital in Kalamzoo, Michigan, and has been actively involved in
perinatal palliative care, care for babies born at the edge of viability, and medical ethics. (Doc.
No. 27-8 ¶¶ 2-9). Dr. Pierucci states that the “edge of viability” has decreased to approximately
22-23 weeks gestation, with a number of cases of intervention at 21 weeks gestation, though she
20
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 20 of 42 PageID #: 746
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 21 (53 of 85)
explains that gestational age is not the only variable that determines viability. (Id. ¶¶ 11-12).
According to Dr. Pierucci, gestational age is not always measured correctly, and prenatal
Dr. Pierucci opines that a completely new person is present at conception, and therefore,
treating the baby humanely at every gestational age is mandatory. (Id. ¶¶ 19-21). In cases where
resuscitation of the baby is not possible, Dr. Pierucci describes the palliative care she provides.
(Id. ¶¶ 22-24). According to Dr. Pierucci, the evidence does not support those denying the
Vanessa Lefler, the Director of Vital Statistics in the Tennessee Department of Health,
collects and compiles reports of “Induced Termination of Pregnancy (ITOP)” events from
healthcare providers in Tennessee. (Doc. No. 27-9 ¶ 1). Attached to Ms. Lefler’s Declaration is a
report summarizing data for ITOP events, from 2009 to 2018, by gestational age of the fetus at
the time of pregnancy termination categorized according to the stages identified in the
challenged legislation.
By way of Reply, Plaintiffs filed the Declarations of Steven J. Ralston, M.D., M.P.H.
(Doc. No. 34-2), and Owen Phillips, M.D., M.P.H. (Doc. No. 34-3), along with supplemental
Declarations of Dr. Looney (Doc. No. 34-1) and Dr. Norton (Doc. No. 34-4).
who specializes in testing for fetal genetic conditions as well as preconception and prenatal
counseling of pregnant patients. (Doc. No. 34-3 ¶¶ 1-8). He is also a Professor in the Department
of Obstetrics and Gynecology at the University of Tennessee Health Science Center in Memphis.
(Id.) Dr. Phillips opines that prenatal screening and testing for fetal conditions, including Down
21
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 21 of 42 PageID #: 747
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 22 (54 of 85)
syndrome, offer a variety of benefits and are consistent with the recommendations of the leading
medical organizations in the field. (Id. ¶¶ 10, 12-26). Genetic testing can benefit patients by
helping them and their families feel less anxious about potential outcomes and prepare for the
child; and can help ensure successful pregnancy and delivery through referral for more
specialized care, increased frequency of prenatal visits, increased use of ultrasound to monitor
fetal growth and development, and arranging delivery in a hospital equipped to handle the
delivery. (Id.)
Dr. Phillips states that, unlike the defense witnesses who specialize in other fields, he
regularly provides prenatal screening and testing and counseling about genetic and other fetal
conditions, including Down syndrome. (Id. ¶ 13). Dr. Phillips disagrees with the assertions of Dr.
Sullivan, Dr. Curlin, and Mr. Snead that prenatal genetic screening and testing are administered
for the purpose of targeting fetuses with Down syndrome for abortion, and that abortions violate
medical ethics. (Id. ¶¶ 10, 27-46). The standard medical practice around a fetal diagnosis of
Down syndrome requires the provision of objective information and individualized, non-
directive counseling. (Id.) In counseling his patients with a Down syndrome diagnosis, Dr.
Phillips explains, he is not unduly negative, and points out the positive potential of children and
adults with Down syndrome, and provides referrals to families of children with Down syndrome
and supporting organizations. (Id.) If they ask, he also provides patients with information about
pregnancy termination, which he does not offer. (Id.) Dr. Phillips states that the experiences of
Ms. Platte and Ms. Bythewood are inconsistent with the standard of care for genetic counseling.
(Id.)
ethics. (Doc. No. 34-2 ¶¶ 1, 6-12). Dr. Ralston opines that the consensus in the medical
22
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 22 of 42 PageID #: 748
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 23 (55 of 85)
community is that a fetus is not able to experience pain before at least 24 weeks from a patient’s
LMP because key connections to the brain do not develop before that time; and scientific
evidence indicates a fetus never experiences pain in utero. (Id. ¶¶ 2-3, 14-36). Where anesthesia
or analgesia is administered to a fetus for fetal surgery and procedures, Dr. Ralston explains, it is
done to prevent fetal movement, not to ensure a fetus remains unconscious or to reduce pain.
(Id.) According to Dr. Ralston, the assertions of Dr. Condic and Dr. Pierucci that fetal pain is
possible before 24 weeks LMP do not reflect the medical consensus and are not well-supported.
(Id.). Dr. Ralston also points out that Dr. Condic is not a medical doctor and lacks clinical
Dr. Ralston also disagrees with the assertions of Dr. Curlin and Mr. Snead, who is not a
medical doctor, that abortion procedures are contrary to medical ethics. (Id. ¶¶ 4, 37-45). The
leading authorities on medical ethics, Dr. Ralson states, “are clear that access to safe and legal
abortion is an important aspect of reproductive health care, that a clinician’s basic obligations are
to the pregnant patient, and that it is unethical to impose personal moral values or judgments on a
Dr. Ralston strongly disagrees with Dr. Sullivan’s opinion that medical practitioners are
biased to recommend abortion for patients who have received a diagnosis of Down syndrome in
the fetus. (Id. ¶¶ 5, 37-45). Dr. Ralston states that in his own practice and in training other
Dr. Norton disagrees with Defendants’ positions regarding viability, Down syndrome
counseling, abortion safety, and medical ethics. As for Drs. Condic and Pierucci’s assertions that
infants become viable around 22 weeks post LMP, Dr. Norton points out that viability is
23
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 23 of 42 PageID #: 749
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 24 (56 of 85)
determined by a multitude of factors in addition to gestational age. (Doc. No. 34-4 ¶¶ 3, 7-17).
She states that the assertion that most fetuses reach viability at 22-23 weeks LMP is not
medically supportable, as the most up-to-date research contradicts the assertion. (Id. ¶¶ 8-17).
Dr. Norton also disagrees with Dr. Sullivan’s assertion that counseling on Down syndrome is
biased in favor of abortion: “Non-directive counseling is the standard of care and is what all
obstetrician-gynecologists are taught to provide.” (Id. ¶¶ 4, 18). Dr. Norton explains that she
provides patients receiving a Down syndrome diagnosis with resources conveying a very positive
message about people with Down syndrome and their families, as well as counseling regarding
the health risks associated with the diagnosis. (Id. ¶¶ 19-23). Contrary to Dr. Curlin’s opinions,
Dr. Norton opines that abortion procedures are part of standard medical care and is consistent
with medical ethics as reflected by the professional ethical organizations in the field. (Id. ¶¶ 6,
27-29). Finally, Dr. Norton disagrees with the legislative finding suggesting abortion is unsafe,
stating that the findings are not medically supported. (Id. ¶¶ 5, 24-26).
Dr. Looney disagrees with Defendants’ suggestion that patients could still access abortion
for one of the prohibited reasons as long as they do not disclose their reasons to the provider.
(Doc. No. 34-1 ¶ 1). That approach would undermine the physician-patient relationship and is
unworkable. (Id. ¶¶ 1-5). Even if a patient does not disclose her reasons, Dr. Looney points out,
the patient’s file or communications from a referring physician are likely to reveal a Down
syndrome diagnosis, or that the patient asked the sex of the fetus during an ultrasound. (Id.)
Having learned of this information, Dr. Looney believes she would be forced to assume the
patient had accounted for such a factor in making her decision, and would not be able to provide
an abortion. (Id.)
24
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 24 of 42 PageID #: 750
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 25 (57 of 85)
III. Analysis
Federal Rules of Civil Procedure, the Court is to consider: (1) the plaintiff’s likelihood of success
on the merits; (2) whether the plaintiff may suffer irreparable harm absent the injunction; (3)
whether granting the injunction will cause substantial harm to others; and (4) the impact of the
injunction on the public interest. See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 (6th
Cir. 2017).
B. Standing
Defendants argue Plaintiffs lack standing to assert their patients’ due process rights.
Plaintiffs contend they have standing to sue on their own behalf, and on behalf of their patients,
The Supreme Court has long established that abortion providers have standing to assert
their patients’ rights. See, e.g., Singleton v. Wulff, 428 U.S. 106, 117, 96 S. Ct. 2868, 49 L. Ed.
2d 826 (1976); see also EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 794
n. 2 (6th Cir. 2020); Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d
1390, 1395-96 (6th Cir. 1987). In Singleton, the Court recognized that abortion providers are
discrimination against,” the patient’s decision to have an abortion. 428 U.S. at 117.
The Supreme Court has also recognized the standing of abortion providers to sue on their
own behalf when challenged legislation or regulations operate directly against them. In reaching
its decision on standing in Planned Parenthood of Cen. Mo. v. Danforth, 428 U.S. 52, 62, 96 S.
25
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 25 of 42 PageID #: 751
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 26 (58 of 85)
Ct. 2831, 49 L. Ed. 2d 788 (1976), the Court pointed out the challenged legislation directly
operated against the plaintiff physicians in the event they provide an abortion that does not meet
the statutory exceptions and conditions. “The physician-appellants, therefore, assert a sufficiently
direct threat of personal detriment. They should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.” 428 U.S. at 62; see also Adams & Boyle, P.C. v.
Slatery, 956 F.3d 913, 924 n. 10 (6th Cir. 2020) (Plaintiff abortion providers “unquestionably
have standing to sue on their own behalf (because EO-25 potentially threatens them with
criminal prosecution) . . .”); EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d at 794
n. 2.
These standing principles were recently reaffirmed by the Supreme Court. In June Med.
Servs. L.L.C. v. Russo, ___ U.S. ___, ___ S. Ct. ___, 2020 WL 3492640 (June 29, 2020), five of
nine justices agreed that abortion providers have standing to assert the constitutional rights of
their patients. Id., at *13 (“We have long permitted abortion providers to invoke the rights of
(Roberts, C.J., concurring in judgment) (“For the reasons the plurality explains, ante, at 11-16, I
agree that the abortion providers in this case have standing to assert the constitutional rights of
their patients.”) In addition, the Court pointed out that plaintiffs have also been permitted to
assert third-party rights in cases where enforcement of the challenged restriction “against the
litigant” would also result in indirect violation of the third party’s rights. Id., at * 14.
As with the plaintiffs in June Medical, the plaintiffs here bring this action to assert the
constitutional rights of their patients and to challenge a law that subjects them to potential
criminal sanctions.
26
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 26 of 42 PageID #: 752
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 27 (59 of 85)
While recognizing authority to the contrary, Defendants argue Plaintiffs have not
identified any specific patients who will be harmed by HB 2263, nor have they established a
“close” relationship with those patients. Defendants also argue Plaintiffs have not shown their
patients are hindered in their ability to protect their own interests, pointing out that patients have
been plaintiffs in other cases. Neither of these requirements have been adopted by the Supreme
Court as a basis for denying standing in similar cases, and the Court must decline Defendants’
invitation to ignore well-established law on this issue. Until the Supreme Court overturns its
precedents recognizing the standing of abortion providers to challenge abortion legislation, this
C. Section 216
Plaintiffs argue the heartbeat and gestational-age bans in Section 216 are unconstitutional
based primarily on the Supreme Court’s decisions in Roe v. Wade, supra, and Planned
In Roe, the Supreme Court held the Due Process Clause of the Fourteenth Amendment
provides constitutional protection to a woman’s decision to terminate her pregnancy in its early
stages. 410 U.S. at 153. The Court also recognized the right is not absolute, and must be
considered against important state interests, such as protection of health, medical standards, and
prenatal life. Id., at 154-55. In balancing those interests, the Court adopted a trimester
8
Citing only a law review article from 1981, Defendants argue the language of Section 1983 prevents
third-party standing. See David P. Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41, 45. In the
absence of any authority recognizing such a limitation in Section 1983 cases, especially given that most
abortion challenges are brought under Section 1983, see, e.g., Planned Parenthood Ass’n of Cincinnati,
822 F.2d at 1392, the Court declines the invitation to apply Defendants’ novel theory here.
27
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 27 of 42 PageID #: 753
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 28 (60 of 85)
In Casey, the Supreme Court abandoned the trimester framework of Roe, while
505 U.S. at 846. The Casey Court balanced these interests by employing an “undue burden
analysis:” “An undue burden exists, and therefore 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.” 505 U.S. at 878; see also June Med. Servs. L. L. C. v. Russo, 2020 WL
3492640 (June 29, 2020) (applying Casey); Whole Woman’s Health v. Hellerstedt, ___ U.S. ___,
136 S. Ct. 2292, 2309, 195 L. Ed. 2d 665 (2016) (applying Casey).
The Court defined viability as “the time at which there is a realistic possibility of
maintaining and nourishing a life outside the womb. . .” Casey, 505 U.S. at 870. Because
viability may differ with each pregnancy, the Court has held that “neither the legislature nor the
courts may proclaim one of the elements entering into the ascertainment of viability—be it
weeks of gestation or fetal weight or any other single factor—as the determinant of when the
State has a compelling interest in the life or health of the fetus.” Colautti v. Franklin, 439 U.S.
379, 388–89, 99 S. Ct. 675, 682, 58 L. Ed. 2d 596 (1979); see also Isaacson v. Horne, 716 F.3d
1213 (9th Cir. 2013) (holding statute prohibiting abortions at 20 weeks gestational age violates
long-standing Supreme Court authority identifying viability as the critical point in considering
abortion rights).
28
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 28 of 42 PageID #: 754
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 29 (61 of 85)
The Eighth Circuit considered a North Dakota law similar to Section 216 – one which
prohibited abortions of unborn children who possess a detectable heartbeat – and held the law
Here, because the parties do not dispute that fetal heartbeats are detectable at
about 6 weeks, it is clear that H.B. 1456 generally prohibits abortions after that
point in a pregnancy. Whether such a prohibition is permissible under the
principles we accept as controlling in this case depends on when viability occurs:
if viability occurs at about 24 weeks, as the plaintiffs maintain, then H.B. 1456
impermissibly prohibits women from making the ultimate decision to terminate
their pregnancies; but if viability occurs at conception, as the State argues, then no
impermissible prohibition ensues.
***
Because there is no genuine dispute that H.B. 1456 generally prohibits abortions
before viability—as the Supreme Court has defined that concept—and because we
are bound by Supreme Court precedent holding that states may not prohibit pre-
viability abortions, we must affirm the district court's grant of summary judgment
to the plaintiffs.
MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772–73 (8th Cir. 2015). More recently, the Fifth
Circuit enjoined the enforcement of a Mississippi law criminalizing abortions after the detection
of a fetal heartbeat. Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020);
see also SisterSong Women of Color Reprod. Justice Collective v. Kemp, ___ F. Supp. 3d ___,
2020 WL 3958227, at *10-11 (N.D. Ga. July 13, 2020) (granting summary judgment to plaintiffs
29
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 29 of 42 PageID #: 755
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 30 (62 of 85)
challenging Georgia law prohibiting abortions after detection of fetal heartbeat); Edwards v.
Beck, 786 F.3d 1113, 1116-17 (8th Cir. 2015) (affirming permanent injunction against
enforcement of Arkansas statute prohibiting abortions if heartbeat was detected and gestational
While acknowledging that courts in other circuits have struck down such provisions,
Defendants point out that the Sixth Circuit has not yet addressed the issue. Although that is true,
application of Casey and other Supreme Court authority lead this Court to the same conclusion
reached by other appellate courts. As Casey has established, a state may not prohibit abortions
before viability. And the definition of viability this Court must apply was provided by the Casey
Court -- “the time at which there is a realistic possibility of maintaining and nourishing a life
outside the womb.” As discussed above, the Supreme Court has also specifically rejected the
idea that a legislature or court may define viability by gestational age alone. Section 216 does not
comply with this authority because it prohibits abortions based solely on gestational age rather
than viability.
Although Defendants’ witnesses, Professor Condic and Dr. Pierucci, cite rare instances
where a fetus has survived at 21-23 weeks, they do not suggest all fetuses in that age category
meet the Casey definition of viability. Dr. Pierucci even acknowledges that gestational age is not
the only variable that determines viability. Even if the witnesses explicitly tied viability to a
certain gestational age, this Court is not free to adopt such a definition in light of Casey. See
MKB Management, 795 F.3d at 773 (holding that state’s declaration does not create a genuine
dispute as to when viability occurs because the declarant’s definition of viability differs from the
Supreme Court’s definition). Given that Tennessee law already prohibits post-viability abortions,
30
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 30 of 42 PageID #: 756
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 31 (63 of 85)
the effect of Section 216 is to ban pre-viability abortions after six weeks or the presence of a fetal
heartbeat.
Defendants argue the provisions of Section 216 do not prohibit pre-viability abortions;
they merely regulate the timing of the decision to have an abortion. According to Defendants,
“[t]he Bill’s gestational-age provisions do not ‘prohibit’ a woman from deciding whether to seek
a pre-viability abortion; they merely regulate when she must make that decision.” (Doc. No. 27,
at 19).
As the Court understands Defendants’ argument, as long as a woman makes the decision
to have an abortion before a fetal heartbeat is heard, or before the unborn child is six weeks old,
the abortion provider would not be prohibited from performing the abortion up to the time a fetus
is viable. In other words, Section 216 would not prohibit an abortion before viability if the
patient has announced, perhaps before she learns she is pregnant, that she has made the decision
to terminate her pregnancy. The Court is not persuaded that the plain language of the statute, or
the legislative findings, support such a creative interpretation. The plain language of Section 216
prohibits an abortion provider from performing an abortion where the unborn child is six weeks
gestational age (unless there is no fetal heartbeat) through 24 weeks gestational age. Thus, as
discussed above, Plaintiffs have shown a likelihood of success on the merits of their claim that
Section 216 violates long-standing Supreme Court precedent prohibiting bans on pre-viability
abortions that this Court is bound to follow. See Bosse v. Oklahoma, ___ U.S. ___, 137 S. Ct. 1,
2, 196 L. Ed. 2d 1 (2016) (“[I]t is this Court's prerogative alone to overrule one of its
precedents.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109
S. Ct. 1917, 104 L. Ed. 2d 526 (1989) (holding lower courts should leave “to this Court the
31
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 31 of 42 PageID #: 757
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 32 (64 of 85)
D. Section 217
abortions, and at least two courts have struck down similar statutes on those grounds. In Planned
Parenthood of Indiana & Kentucky, Inc. v. Comm'r of Indiana State Dep't of Health, 888 F.3d
300, 306 (7th Cir. 2018), cert denied in part and granted in part, judgment rev’d in part on other
grounds sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019), the
Seventh Circuit considered an Indiana law that prohibited abortions for certain reasons, such as
race, sex, color, national origin, ancestry, or Down syndrome, and held it was unconstitutional
under Casey. In addition, the district court for the Eastern District of Arkansas enjoined
enforcement of a statute prohibiting abortion based on the belief that the unborn child has Down
syndrome. Little Rock Family Planning Srvcs. v. Rutledge, 397 F. Supp. 3d 1213, 1271-72 (E.D.
Ark. 2019).
As yet, the Sixth Circuit has not directly addressed the constitutionality of similar
legislation. In Preterm-Cleveland v. Himes, 940 F.3d 318, 320 (6th Cir. 2019), a panel of the
Sixth Circuit addressed a challenge to an Ohio law prohibiting abortion providers from
performing an abortion with the knowledge that the decision to abort arises from a diagnosis or
indication that the unborn child has Down syndrome. The panel held the statute operated as an
Sixth Circuit judges subsequently voted for rehearing en banc and vacated the panel opinion. 944
F.3d 630 (6th Cir. 2019). Given the status of this case before the Sixth Circuit, and this Court’s
conclusion, as discussed below, that Section 217 is unconstitutionally void for vagueness, the
32
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 32 of 42 PageID #: 758
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 33 (65 of 85)
Court finds it unnecessary to address Plaintiffs’ argument that Section 217 operates as an
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.
Ct. 2294, 2298–99, 33 L. Ed. 2d 222 (1972). The prohibition on vagueness recognizes that laws
should “give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Id. The void-for-vagueness doctrine also guards
against arbitrary and discriminatory enforcement because: “[a] vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id.;
Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (“Where
the legislature fails to provide such minimal guidelines [to government law enforcement], a
criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and
juries to pursue their personal predilections.’”) For that reason, “the doctrine is a corollary of the
separation of powers – requiring that Congress, rather than the executive or judicial branch,
define what conduct is sanctionable and what is not.” Sessions v. Dimaya, ___ U.S. ___, 138 S.
physician attempting to comply with the statute must determine what it means to “know” that his
or her patient is seeking an abortion “because of” the sex or race of the unborn child, or a
diagnostic test indicating Down syndrome (or “the potential” for Down syndrome) in the unborn
child. These terms are not defined in the statute, and lead to several pivotal questions. Will the
physician be subject to criminal sanction only where the patient explicitly states she seeks an
33
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 33 of 42 PageID #: 759
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 34 (66 of 85)
abortion for a prohibited reason, or could the physician be arrested for providing an abortion
where the patient’s file or a referring physician includes a reference to a prohibited reason? Will
the prohibition apply where the patient indicates a prohibited reason is the only reason she seeks
an abortion, or does it apply where the prohibited reason is the motivating reason, a significant
factor, or one of several reasons? Will the prohibition apply where the patient simply makes a
reference to the sex of her fetus, the race of the father, or her age in one of her conversations with
the physician? As Plaintiffs’ Declarations reflect, these questions – left unanswered by Section
217 – make it impossible for a person of ordinary intelligence to know what conduct constitutes
a crime. The lack of precision by the legislative body that approved its language also
impermissibly delegates the task of answering these questions to law enforcement officers,
Relying on the Supreme Court’s decisions defining the phrase “because of” in the
employment discrimination context, see Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
350, 133 S. Ct. 2517, 2527, 186 L. Ed. 2d 503 (2013), Defendants argue the provisions of
Section 217 are not unconstitutionally vague. Defendants do not point to any provision in this
criminal statute, however, limiting the definition of “know” or “because of” in a similar fashion.
More importantly, Defendants fail to acknowledge the aspect of Section 217 that makes it unique
– the statute requires one individual to know the motivations underlying the actions of another
individual, and subjects the first individual to criminal sanctions if he or she reaches the “wrong”
conclusion.
Defendants cite a 1995 California Supreme Court case holding the phrase “because of,”
used in the state’s hate crime statute,9 is not unconstitutionally vague because it is a term of
9
The statute provided:
34
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 34 of 42 PageID #: 760
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 35 (67 of 85)
common usage. See In re M.S., 896 P.2d 1365, 1376 (Cal. 1995). Again, the distinction between
Section 217 and California’s hate crime statute is that Section 217 requires an individual to know
the motivations underlying the action of another person to avoid prosecution. The hate crime
perpetrator knows what is in his or her own mind, and is presumably able to curb his behavior to
avoid criminal sanction. The criminal sanction in Section 217, by contrast, is directed at the
physician, who must make judgments about the state of mind of a patient and is possibly subject
Defendants also argue the term “knows” in the statute is a scienter requirement that
that the abortion is being sought because of the unborn child’s race, sex, or Down syndrome
diagnosis.” (Doc. No. 27, at 29). In the Court’s view, requiring the physician to be “aware” of
the intent of the patient does not cure the vagueness of the statute. Although Defendants state
their belief that the statute would not impose liability where a patient simply makes reference to
a prohibited reason, their “belief” is not supported by the imprecise language of the statute, nor
does it guarantee individual prosecutors will agree with their interpretation. When a law
threatens criminal sanctions, such vague provisions and potential varied interpretations cannot
stand. Plaintiffs have established, therefore, a substantial likelihood of success in their challenge
of Section 217.
(a) No person, whether or not acting under color of law, shall by force or threat of
force, willfully injure, intimidate, interfere with, oppress, or threaten any other
person in the free exercise or enjoyment of any right or privilege secured to him or
her by the Constitution or laws of this state or by the Constitution or laws of the
United States because of the other person's race, color, religion, ancestry, national
origin, or sexual orientation.
35
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 35 of 42 PageID #: 761
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 36 (68 of 85)
Finally, relying on Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 205 (6th Cir.
1997), Plaintiffs argue that, even if Sections 216 and 217 do not apply to pre-viability abortions,
they are still unconstitutional because they lack valid exceptions for medical emergencies. In
Voinovich, the court reviewed Casey’s holding that post-viability, the State may regulate and
even proscribe abortion “‘except where it is necessary in appropriate medical judgment, for the
preservation of the life or health of the mother.’” 130 F.3d at 203 (quoting Casey, 505 U.S. at
879). In addressing the plaintiffs’ argument that an Ohio statute banning post-viability abortions
was unconstitutional because it did not contain a valid medical necessity exception,10 the court
The term ‘scienter’ means ‘knowingly’ and is used to signify a defendant's guilty
knowledge. BLACK'S LAW DICTIONARY 1345 (6th ed.1990). It requires that a
defendant have some degree of guilty knowledge or culpability in order to be
found criminally liable for some conduct. Statutes imposing criminal liability
without a mental culpability requirement are generally disfavored. See Staples v.
10
The Ohio statute defined “medical emergency as follows:
[A] condition that a pregnant woman's physician determines, in good faith and in the
exercise of reasonable medical judgment, so complicates the woman's pregnancy as to
necessitate the immediate performance or inducement of an abortion in order to prevent
the death of the pregnant woman or to avoid a serious risk of the substantial and
irreversible impairment of a major bodily function of the pregnant woman that delay in
the performance or inducement of the abortion would create.
“Serious risk of the substantial and irreversible impairment of a major bodily function” was defined as:
any medically diagnosed condition that so complicates the pregnancy of the woman as to
directly or indirectly cause the substantial and irreversible impairment of a major bodily
function, including, but not limited to, the following conditions:
(1) Pre-eclampsia;
(2) Inevitable abortion;
(3) Prematurely ruptured membrane;
(4) Diabetes;
(5) Multiple sclerosis.
36
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 36 of 42 PageID #: 762
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 37 (69 of 85)
United States, 511 U.S. 600, 605–06, 114 S. Ct. 1793, 1797, 128 L.Ed.2d 608
(1994).
The Act's ‘medical emergency’ definition requires the physician to determine ‘in
good faith and in the exercise of reasonable medical judgment’ whether an
emergency exists. OHIO REV.CODE ANN. § 2919.16(F). Similarly, the medical
necessity exception to the post-viability ban requires that the physician determine
‘in good faith and in the exercise of reasonable medical judgment’ that the
abortion is necessary. See id. § 2919.17(A)(1). Thus, both of these provisions
contain subjective and objective elements in that a physician must believe that the
abortion is necessary and his belief must be objectively reasonable to other
physicians. This dual standard as written contains no scienter requirement.
Therefore, a physician may act in good faith and yet still be held criminally and
civilly liable if, after the fact, other physicians determine that the physician's
medical judgment was not reasonable. In other words, a physician need not act
willfully or recklessly in determining whether a medical emergency or medical
necessity exists in order to be held criminally or civilly liable; rather, under the
Act, physicians face liability even if they act in good faith according to their own
best medical judgment.
The medical-emergency affirmative defense in Sections 216 and 217 requires the
physician to determine that, in the exercise of his or her “reasonable medical judgment,” a
that, in the physician's good faith medical judgment, based upon the facts known to the physician
at the time, so complicates the woman's pregnancy as to necessitate the immediate performance
or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a
serious risk of the substantial and irreversible impairment of a major bodily function of the
pregnant woman that delay in the performance or inducement of the abortion would create.” Like
the provision in Voinovich, the statute does not contain a scienter requirement, and a physician
acting in “good faith” may still be held criminally liable if, after the fact, other physicians
37
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 37 of 42 PageID #: 763
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 38 (70 of 85)
The resulting uncertainty created by such language led the Voinovich court to conclude
includes both an objective and a subjective standard, and does not have a scienter requirement.
Acknowledging the Sixth Circuit’s Voinovich decision, Defendants argue the medical-
emergency defense is not unconstitutionally vague because it includes a scienter requirement that
imposes criminal liability only where the physician’s conduct is “unreasonable.” As the
Voinovich Court explained, however, scienter requires a defendant to have some degree of guilty
38
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 38 of 42 PageID #: 764
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 39 (71 of 85)
knowledge or culpability to be held criminally liable, and the court did not consider
(b) A culpable mental state is required within this title unless the definition of an
offense plainly dispenses with a mental element.
(c) If the definition of an offense within this title does not plainly dispense with a
mental element, intent, knowledge or recklessness suffices to establish the
culpable mental state.
Defendants cite to Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 534-35 (8th Cir. 1994),
where the court upheld a medical-emergency exception to a vagueness challenge because North
Dakota law incorporated a “willfulness” mens rea to the exception. But the language of the
North Dakota exception did not include a requirement that the physician’s judgment be
“reasonable” as measured by other physicians. The North Dakota exception “allow[ed] the
physician to rely on his or her ‘best clinical judgment’ in determining whether a condition
constitutes a medical emergency.” Id. That language, the court concluded, “certainly places in
the physician's hands the medical judgment that would satisfy the requirements of the statute.”
Id.
would work where the statute looks both to the physician’s “good faith medical judgment” on the
one hand, and yet requires that medical judgment to be “reasonable” as measured by others, on
the other hand. See Women’s Medical Prof. Corp. v. Voinovich, 911 F. Supp. 1051, 1085-87
11
Defendants also rely on the Seventh Circuit’s decisions in Karlin v. Foust, 188 F.3d 446, 465-68 (7th
Cir. 1999) and Hope Clinic v. Ryan, 195 F.3d 857, 866 (7th Cir. 1999), cert. granted, judgment
vacated, 530 U.S. 1271, 120 S. Ct. 2738, 147 L. Ed. 2d 1001 (2000). Neither court sanctioned the same
problematic language at issue here.
39
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 39 of 42 PageID #: 765
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 40 (72 of 85)
(S.D. Ohio 1995) (explaining that importing a mens rea of “recklessness” would essentially
require the court to rewrite the statute because “recklessness” conflicts with “reasonableness.”)
Thus, the vagueness of the language cannot be remedied by that approach. Unless and until the
Sixth Circuit overturns its decision in Voinovich, this Court is bound to follow it, and hold the
For the reasons described above, the Court concludes Plaintiffs have established a strong
likelihood of success on the merits of their constitutional challenges to Sections 216 and 217.
As for the other Rule 65 considerations, the Court is persuaded Plaintiffs have
demonstrated they will suffer immediate and irreparable injury, harm, loss, or damage if
injunctive relief is not granted pending final resolution of this case. “A plaintiff's harm from the
damages.” Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 578 (6th Cir. 2002).
A plaintiff can also demonstrate denial of an injunction will cause irreparable harm if the claim is
based on a violation of constitutional rights. Id.; Planned Parenthood Ass'n of Cincinnati, Inc. v.
City of Cincinnati, 822 F.2d at 1400 (finding irreparable harm in case where abortion clinic
challenged ordinance on behalf of itself and its patients). First, as explained above, Plaintiffs
have demonstrated a strong likelihood of success on the merits in showing that Sections 216 and
217 are unconstitutional. Second, as Plaintiffs’ Declarations attest, enforcement of the provisions
of Sections 216 and 217 will immediately impact most patients in Tennessee who seek pre-
viability abortions, and the time-sensitive nature of the procedure adds to that impact.12 Despite
12
Plaintiffs’ Declarations state that most patients seeking abortions are poor or low-income; are already
parents; struggle to access transportation, childcare, and time off work; and will face logistical and
40
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 40 of 42 PageID #: 766
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 41 (73 of 85)
Defendants’ arguments to the contrary, a finding of irreparable harm does not require Plaintiffs
to disclose the identity of specific patients. Third, enforcement of Sections 216 and 217 will
likely result in criminal sanctions, including prison and fines, as well as licensing implications,
This threatened harm outweighs any harm to Defendants or to the public interest. Neither
Defendants nor the public have a strong interest in enforcing an unconstitutional statute. Planned
Parenthood Ass’n of Cincinnati, 822 F.2d at 1400 (explaining validity of city’s interest in
of Sections 216 and 217 will simply preserve the status quo pending trial.
For these reasons, Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 6) is
GRANTED, as follows: Pursuant to Rule 65, it is ORDERED that Defendants, their officers,
agents, employees, servants, attorneys, and all persons in active concert or participation with
them, are hereby enjoined and restrained from enforcing Tennessee Code Annotated Sections 39-
As for the question of posting a bond, given that Defendants are unlikely to incur
damages or costs from this injunctive relief, the Court exercises its discretion to waive the
security required by Rule 65(c). See, e.g., Appalachian Reg'l Healthcare, Inc. v. Coventry Health
& Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013) (observing that the rule in Sixth Circuit has
long been that the district court possesses discretion over whether to require the posting of
This Preliminary Injunction Order shall remain in effect pending further order of the
Court.
financial impediments to travelling out of Tennessee to obtain services. (Rovetti Declaration ¶¶ 14-21;
Terrell Declaration ¶¶ 24-27; Grant Declaration ¶ 18).
41
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 41 of 42 PageID #: 767
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 42 (74 of 85)
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
42
Case 3:20-cv-00501 Document 41 Filed 07/24/20 Page 42 of 42 PageID #: 768
Case: 20-5969 Document: 130-2 Filed: 06/24/2022 Page: 43 (75 of 85)
ORDER
Pending before the Court are Plaintiffs’ Motion for Temporary Restraining Order and/or
Preliminary Injunction (Doc. No. 6), Defendants’ Response (Doc. No. 27), and Plaintiffs’ Reply
(Doc. No. 34). The Court issued a Temporary Restraining Order on July 13, 2020 (Doc. No. 33),
For the reasons set forth in the accompanying Memorandum, Plaintiffs’ Motion for
Pursuant to Rule 65, it is ORDERED that Defendants, their officers, agents, employees,
servants, attorneys, and all persons in active concert or participation with them, are hereby enjoined
and restrained from enforcing Tennessee Code Annotated Sections 39-15-216 and 39-15-217.
The Court exercises its discretion to waive the security required by Rule 65(c).
This Preliminary Injunction Order shall remain in effect pending further order of the Court.
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
v.
NOTICE OF APPEAL
Pursuant to 28 U.S.C. § 1292(a)(1), Defendants Herbert H. Slatery III, Lisa Piercey, Rene
Saunders, W. Reeves Johnson, Jr., Amy P. Weirich, Glenn Funk, Charme P. Allen, and Tom P.
Thompson, Jr., in their official capacities only (“Defendants”), hereby give notice of their appeal
to the United States Court of Appeals for the Sixth Circuit from the district court’s July 24, 2020
Order granting a preliminary injunction, including the legal conclusions and factual findings on
Respectfully submitted,
/s/Alexander S. Rieger
ALEXANDER S. RIEGER
Assistant Attorney General
Public Interest Division
Office of the Attorney General and Reporter
P.O. Box 20207
Nashville, Tennessee 37202-0207
(615) 741-2408
BPR No. 029362
[email protected]
/s/Charlotte Davis
CHARLOTTE DAVIS
Assistant Attorney General
Office of the Attorney General and Reporter
P.O. Box 20207
Nashville, TN 37202
(615) 532-2500
BPR No. 034204
[email protected]
CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2020, a copy of the foregoing Notice of Appeal was filed
electronically and sent to the below individuals via email. Notice of this filing will be sent by
operation of the Court's electronic filing system to all parties indicated on the electronic filing
receipt. Parties may access this filing through the Court's electronic filing system.
Thomas H. Castelli
American Civil Liberties Union
Foundation of Tennessee
P.O. Box 12160
Nashville, TN 37212
Tel: (615) 320-7142
[email protected]
Jessica Sklarsky
Rabia Muqqadam
Francesca Cocuzza
Center for Reproductive Rights
199 Water Street, 22nd Floor
New York, NY 10038
Tel: (917) 637-3600
Fax: (917) 637-3666
[email protected]
[email protected]
[email protected]
Susan Lambiase
Planned Parenthood Federation of America
123 William St., 9th Floor
New York, NY 10038
Tel: (212) 261-4405
Fax: (212) 247-6811
[email protected]
Anjali Dalal
Andrew Beck
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: (212) 549-2633
[email protected]
[email protected]
/s/Alexander S. Rieger
ALEXANDER S. RIEGER
┐
MEMPHIS CENTER FOR REPRODUCTIVE HEALTH;
│
PLANNED PARENTHOOD OF TENNESSEE AND NORTH
│
MISSISSIPPI; KNOXVILLE CENTER FOR REPRODUCTIVE
│
HEALTH; FEMHEALTH USA, INC., d/b/a carafem; DR.
│ No. 20-5969
KIMBERLY LOONEY; DR. NIKKI ZITE, >
Plaintiffs-Appellees, │
│
│
v. │
│
HERBERT H. SLATERY, III; LISA PIERCEY, M.D.; RENE │
SAUNDERS, M.D., MELANIE BLAKE, M.D.; AMY P. │
WEIRICH; GLENN R. FUNK; CHARME P. ALLEN; JASON │
LAWSON, │
Defendants-Appellants. │
┘
COUNSEL
*
Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Daughtrey, a senior judge of the
court who sat on the original panel in this case, participated in this decision.
Case:
Case:20-5969
20-5969 Document:
Document:130-2
122-2 Filed:
Filed:06/24/2022
02/02/2022 Page:
Page:49
2 (81
(7 of 11)
85)
No. 20-5969 Memphis Center for Reproductive Health, et al. v. Slatery, et al. Page 2
The En Banc Court of the Sixth Circuit Court of Appeals issued an order. MOORE, J.
(pp. 3–6), delivered a separate opinion dissenting from the order partially granting a stay of the
district court’s injunction, in which DAUGHTREY, COLE, CLAY, WHITE, and STRANCH,
JJ., joined.
_________________
ORDER
_________________
No. 20-5969 Memphis Center for Reproductive Health, et al. v. Slatery, et al. Page 3
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting from the order partially granting a
stay of district court’s injunction. Tennessee enacted two sets of abortion bans. The first set of
bans (the “previability bans”) makes it a felony to perform an abortion at specified points in the
pregnancy, all of which are before viability.1 Tenn. Code Ann. § 39-15-216. The second set of
bans (the “reason bans”) makes it a felony to perform an abortion if the person “knows that the
woman is seeking the abortion because of” the sex or race of the fetus or a test that indicates the
fetus has Down syndrome. Id. § 39-15-217(b)–(d). The district court preliminarily enjoined
both sets of bans, finding that the plaintiffs were likely to succeed on the merits of their claims
that (1) the previability bans are unconstitutional based on Roe v. Wade, 410 U.S. 113 (1973),
and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and
(2) the reason bans are void for vagueness. See Memphis Ctr. for Reprod. Health v. Slatery
(“Memphis I”), No. 3:20-cv-00501, 2020 WL 4274198, at *20–21 (M.D. Tenn. July 24, 2020).
A panel of our court affirmed the district court’s decision. See Memphis Ctr. for Reprod. Health
v. Slatery (“Memphis II”), 14 F.4th 409 (6th Cir.), vacated, 18 F.4th 550 (6th Cir. 2021).
A majority of the active judges of this court granted the petition for en banc review, vacating the
panel opinion. Memphis Ctr. for Reprod. Health v. Slatery, 18 F.4th 550 (6th Cir. 2021) (Mem.).
Today, the majority votes to take two actions. First, it votes to stay the portion of the
district court’s order enjoining Tennessee’s reason bans. Second, it refuses to hear the case until
after the Supreme Court issues its decision in Dobbs v. Jackson Women’s Health Organization,
No. 19-1392, on the grounds that the Dobbs decision could impact our decision on an entirely
1
Subsection 216(c)(1) criminalizes performing an abortion “upon a pregnant woman whose unborn child
has a fetal heartbeat.” Tenn. Code Ann. § 39-15-216(c)(1). Subsections 216(c)(2)–(12) criminalize performing an
abortion when the fetus’s gestational age is at least 6, 8, 10, 12, 15, 18, 20, 21, 22, 23, and 24 weeks. Subsection
216(h) provides that if any provision is found to be unenforceable, the other provisions remain effective. In other
words, if the six-week ban is unconstitutional, Tennessee will enforce the eight-week ban; if the eight-week ban is
unconstitutional, Tennessee will enforce the ten-week ban; and so on.
Case:
Case:20-5969
20-5969 Document:
Document:130-2
122-2 Filed:
Filed:06/24/2022
02/02/2022 Page:
Page:51
4 (83
(9 of 11)
85)
No. 20-5969 Memphis Center for Reproductive Health, et al. v. Slatery, et al. Page 4
separate part of the law—the previability bans.2 Together, these stay-and-delay tactics subvert
the normal judicial process, harming both the substance of our ultimate decision and our court’s
legitimacy.
Dobbs is unlikely to address, let alone resolve, the vagueness concerns that led the district
court to enjoin the reason bans. Although the questions presented in Dobbs are entirely unrelated
to the questions posed by Tennessee’s reason bans, the majority chooses to stay indefinitely the
district court’s preliminary injunction of the reason bans until after Dobbs is decided. For now,
the majority’s decision to grant a partial stay of the district court’s preliminary injunction while
delaying our consideration of the case has the effect of reversing a thoughtful and thorough
district court opinion indefinitely—without full briefing, without argument, and without the
appropriate level of consideration that an en banc case merits. Moving forward, the effects of
such tactics are even more harmful.
The only imaginable reason for delaying our consideration of this case is to give the en
banc court the first chance to apply any new standard that may be laid out in Dobbs to
Tennessee’s previability bans. No judge has suggested that, under existing Supreme Court
precedent, these laws are even arguably constitutional. See Memphis II, 14 F.4th at 438 (Thapar,
J., dissenting). If, in Dobbs, the Supreme Court reaffirms its precedent, there will have been no
need to delay. If, on the other hand, Dobbs announces a new standard governing abortion, our
delay will ensure that our en banc court will be the first in our circuit to apply the new standard
to Tennessee’s previability bans, and perhaps to any previability bans.
If the majority ultimately decides to apply a currently unknown and undecided standard
to Tennessee’s previability bans—without the benefit of district court factfinding tailored to that
standard—such a decision would manifest reckless overconfidence and unprincipled disregard
for the normal judicial process. Typically, a district court engages in factfinding that is tailored
to the legal standard. After it makes an appealable decision, a panel of our court hears the case.
If a majority of the active judges of this court decides that en banc review of the three-judge-
panel decision is warranted, we then hear the case as a full court. There is a good reason for this
2
The majority’s order does not acknowledge this delay. Its refusal to say explicitly that it is slow rolling
this case neither changes the fact that it is doing so nor makes its decision to do so any less pernicious.
Case:
Case:20-5969
20-5969 Document:
Document:130-2
122-2 Filed:
Filed:06/24/2022
02/02/2022 Page:
Page:52
5 (10 of 85)
(84 11)
No. 20-5969 Memphis Center for Reproductive Health, et al. v. Slatery, et al. Page 5
order: district courts find facts; we do not. See United States v. Ramamoorthy, 949 F.3d 955,
963 (6th Cir. 2020) (“Courts of appeal are not equipped to decide factual questions in the first
instance.”). And “[p]anel decisions refine, narrow, and focus issues before the court.” Belk v.
Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853, 854 (4th Cir. 2000) (Wilkinson, C.J.,
concurring in the denial of initial hearing en banc).
It seems inevitable that any new standard after the Supreme Court’s decision in Dobbs
will necessitate new factfinding. In granting plaintiffs a preliminary injunction in this case, the
district court considered the declaration testimony offered by both plaintiffs and defendants. See
Memphis I, 2020 WL 4274198, at *3–12. This declaration testimony—and the district court’s
consideration of it—addressed the facts needed to evaluate the Tennessee law in light of the legal
standard that existed at the time (and the one that still exists now). If the legal standard changes,
the types of facts that the district court would use to apply the standard would also necessarily
change.
Even if no factfinding is needed, it will have been improper to delay the case just so that
the en banc court is the first to apply any new Dobbs standard. A three-judge panel is better
equipped to do so. Hearing a case en banc is “a rarely satisfying, often unproductive, always
inefficient process.” Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in
the denial of en banc). Without a previous panel decision applying a legal standard to the facts
in a case, en banc review is even less satisfying, and more unproductive. And, in a case such as
this, which will have been delayed only so that the en banc court can apply a brand new standard,
it is impossible to see how en banc hearing can be constructive. Instead, the likely result of en
banc hearing in the first instance will be to mangle the law of the circuit interpreting that
standard. Because this will have happened on en banc hearing, our circuit’s precedent will be all
the more difficult to mend.
This majority’s decision at this juncture showcases a growing trend among federal courts
to use facially neutral mechanisms to delay the adjudication of laws that significantly impair
constitutional rights. See, e.g., Whole Woman’s Health v. Jackson, No. 21-50792, __ F.4th __,
2022 WL 142193, at *6–9 (5th Cir. Jan. 17, 2022) (Higginson, J., dissenting). In the current
moment, courts have confined these tactics to cases concerning abortion, but these same
Case:
Case:20-5969
20-5969 Document:
Document:130-2
122-2 Filed:
Filed:06/24/2022
02/02/2022 Page:
Page:53
6 (11 of 85)
(85 11)
No. 20-5969 Memphis Center for Reproductive Health, et al. v. Slatery, et al. Page 6
mechanisms can be abused to manipulate the court process in cases involving whatever right
next falls into the disfavor of a then-reigning majority. I cannot sign on to the use of such
strategy to subvert the regular judicial process. Accordingly, I dissent.
___________________________________
Deborah S. Hunt, Clerk