Sixth Circuit Blocks Tennessee Abortion Bans: “Access to Abortion Is a Constitutionally Protected Right”

“With all eyes on the devastating effect of the Texas abortion ban, this is a welcome news for Tennesseans and the rule of law.”

—Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project

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A ‘Stop the Bans’ rally outside the Supreme Court in May 2019. (Wikimedia Commons)

On Friday, the U.S. Court of Appeals for the Sixth Circuit blocked two Tennessee laws—one banning abortion after approximately six weeks of pregnancy and another banning abortion for certain reasons, including race, gender or genetic anomaly. The six-week abortion ban was previously blocked by a lower court, but the “reasons ban” has been in effect since November 2020.

“Today is a huge win for pregnant people in Tennessee,” said Rabia Muqaddam, staff attorney at the Center for Reproductive Rights. “These bans would dangerously prevent patients from getting care, and politicians should not get to decide what is an acceptable reason for seeking an abortion.”

The Sixth Circuit issued a preliminary injunction blocking both bans based on a high likelihood that after a full hearing courts will find they violate the U.S. Constitution. The court argued the six-week ban places an undue burden on women’s access to abortion in violation of the constitutional right to abortion established by the cases of Roe v. Wade and Casey v. Planned Parenthood and that the reasons ban was unconstitutionally vague.

“The court of appeals today rightly respected nearly 50 years of precedent by blocking these dangerous laws,” said Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project. “With all eyes on the devastating effect of the Texas abortion ban, this is a welcome news for Tennesseans and the rule of law.”

The Sixth Circuit ruling follows decisions last week of the Fifth Circuit and the U.S. Supreme Court to allow a Texas ban on abortion at six weeks to go into effect. The Texas ban blocks 85–90 percent of abortions in the state so Texans now have to go out of state, traveling over 200 miles farther each way to obtain most abortion health care, reports Guttmacher Institute.

“After Texas rendered the constitutional right to abortion meaningless and other states continued to attack access to care, the Sixth Circuit’s decision to block Tennessee’s six-week abortion ban and reason ban brings some relief,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.

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Outside the Supreme Court after the decision on Whole Woman’s Health v. Hellerstedt Texas abortion case in June 2016. (Adam Fagen / Flickr)

Race and sex-selective abortion bans are based on negative stereotypes about people of color and immigrants, and lead to racial profiling, reports the Guttmacher Institute. Race-selective abortion bans are based on the idea that people of color are coerced into abortions or are complicit in a “genocide” against their own community. Sex-selective abortion bans are based on stereotypes that Asian Americans have abortions because of the sex of a fetus. There is no evidence supporting these claims.

“We know that abortion bans that prevent people from accessing care not only reinforce abortion stigma, but also disproportionately harm pregnant Black, Latinx and Indigenous people,” said Johnson. “Planned Parenthood will continue fighting alongside our partners until patients everywhere have meaningful access to the care they need when they need it, and can make their own personal decisions and determine their own futures—free of interference by politicians.”

This case was filed by the Center for Reproductive Rights, Planned Parenthood, the American Civil Liberties Union and the ACLU of Tennessee on behalf of the Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi (PPTNM), Knoxville Center for Reproductive Health, carafem and two individual abortion providers in Tennessee.

“Today’s ruling affirms that abortion remains safe and legal in Tennessee, even in the midst of a national, coordinated attack on abortion rights,” said Ashley Coffield, president and CEO of PPTNM. “We trust our patients to make their own, fully informed reproductive health care decisions. We are thankful that the court ruled to protect that trust and ensure that we can continue to provide expert, compassionate abortion care in our state.”

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Participants at the 2017 Women’s March in Knoxville, Tenn. (Wikimedia Commons)

Tennessee has many additional abortion restrictions on the books, including a ban on the use of telehealth for medication abortion; limits on when state and public insurance can cover abortion services; and a requirement that minors obtain parental consent.

Earlier this year, the full Sixth Circuit Court of Appeals overturned a district court decision striking down a 48-hour mandatory waiting period for abortion in Tennessee. That law is now in effect.

The Center, Planned Parenthood Federation of America, the ACLU and the ACLU of Tennessee filed another case challenging the state’s medication abortion “reversal” law in August 2020, and that law has been temporarily blocked from taking effect.

“While we are relieved that the court has reinstated a full block on these abortion bans, we must remain vigilant,” said Muqaddam. “With a case that could overturn Roe v. Wade before the Supreme Court, Congress must act swiftly to protect abortion access and declare abortion bans like these illegal by passing the Women’s Health Protection Act.”


“With a case that could overturn Roe v. Wade before the Supreme Court, Congress must act swiftly to protect abortion access and declare abortion bans like these illegal by passing the Women’s Health Protection Act.”


In May, the U.S. Supreme Court agreed to hear an appeal in the case of Dobbs v. Jackson Women’s Health Organization involving a Mississippi law banning most abortions after 15 weeks. The court is considering the question as to whether all previability prohibitions on abortion are unconstitutional.

In June, members of Congress reintroduced the Women’s Health Protection Act (WHPA)—federal legislation that would codify Roe v. Wade in law and establish the legal right to abortion in all 50 states under federal law. The WHPA guarantees a pregnant woman’s right to access an abortion and protects the right of abortion providers to deliver these services free from medically unnecessary restrictions that interfere with a patient’s individual choice or the provider-patient relationship. The law would block abortion bans like those in Tennessee, Mississippi and Texas.

But in the meantime, the Sixth Circuit decision striking down the Tennessee bans will provide some relief for women in the state.

“We applaud the court for recognizing that access to abortion is a constitutionally protected right,” said Hedy Weinberg, ACLU of Tennessee executive director. “People should be able to make decisions for themselves about whether and when to become a parent, without politicians interfering. Today’s ruling is critical to Tennesseans’ ability to continue receiving safe and legal abortion care. We will continue to fight this unconstitutional law until it is struck down for good.”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Chair of American Studies and a professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.