Memphis Center for Reproductive Health v. Slatery, No. 20-5969 (6th Cir. 2021)
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Plaintiffs filed suit challenging two sections of House Bill 2263: Section 216 criminalizes the performance of pre-viability abortions at cascading intervals of two to three weeks, beginning with the detection of a "fetal heartbeat" and continuing through a gestational age of 24 weeks; and Section 217 criminalizes the performance of an abortion if the physician "knows" the reason for the abortion is "because of" the race, sex, or a Down syndrome diagnosis of the fetus. Both sections contain an affirmative defense provision when the abortion was performed because, "in the physician's good faith, reasonable medical judgment," the abortion was necessary to avoid a medical emergency.
The Sixth Circuit affirmed the district court's judgment and concluded that the district court properly issued a preliminary injunction prohibiting enforcement of Sections 216 and 217 of H.B. 2263 because the provisions are constitutionally unsound. The court stated that it is still clear that when burdens are substantial enough, a law restricting access to pre-viability abortions is unconstitutional. Because the court found that all provisions of Section 216 pose a substantial burden to a person seeking an abortion at the relevant time LMP, it is unnecessary for the court to fully address the State's interests. Even if the court were to consider the State's interests, there are questions about whether its declared reasons for the law are, in fact, genuine. The court stated that the Supreme Court has been clear that laws that have the purpose or effect of placing an obstacle in the path of a woman seeking abortion "cannot be considered a permissible means of serving its legitimate ends." The court explained that this legislative history indicates a likelihood that the justifications offered in court have been mere pretext and that the bill was passed with knowledge that it was unconstitutional. Therefore, it is likely that plaintiffs would succeed on the merits in demonstrating that Section 216 is unconstitutional because it is in direct violation of the principles established in Roe v. Wade, 410 U.S. 113, 117 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 878 (1992).
In regard to Section 217, the court concluded that the district court correctly determined that plaintiffs were likely to succeed on their void-for-vagueness challenge. Declining to address whether Section 217 violates principles of substantive due process, the court concluded that the district court should resolve this issue in the first instance and, in doing so, should analyze the ban on abortions for Down syndrome separately from bans on abortions for reasons of race or sex.
The court noted that it is unnecessary to decide whether the medical-emergency affirmative defense is constitutional because the injunction on other grounds moots the issue. The court further concluded that the district court did not abuse its discretion in finding that the other relevant factors weighed in favor of granting the preliminary injunction. Finally, the court stated that, although this circuit's recent—and alarming—decisions have broadened the extent to which the government may impede a person's constitutional right to choose whether to carry a pregnancy to term, the law remains clear that if a regulation is a substantial obstacle to a woman seeking an abortion, it is invalid.
The court issued a subsequent related opinion or order on December 1, 2021.
The court issued a subsequent related opinion or order on February 2, 2022.
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