On Friday, the U.S. 6th Circuit Court of Appeals in a high-profile abortion case, by a vote of 10-6, took the unusual step of agreeing to hear an initial appeal en banc, rather than allowing the appeal to be heard initially by a 3-judge panel. In Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., April 9, 2021), Judge Moore, joined by 5 other judges, issued a dissent to the majority's one-sentence order:
This case concerns abortion. Specifically, it concerns the constitutionality of a Tennessee abortion law that sets a 48-hour waiting period before a woman can obtain an abortion. After the district court held Tennessee’s waiting-period law unconstitutional and permanently enjoined its enforcement, the officials defending the law appealed. Appellants sought a stay pending appeal. A three-judge panel denied that request, with Judge White and myself concluding that Appellants were unlikely to succeed on the merits of their appeal. Judge Thapar disagreed. So vehemently did he disagree that he called for “immediate correction” of the stay order, urging Appellants to seek initial hearing en banc. Appellants readily obliged, filing a petition for initial hearing en banc. By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases....
The grant of initial hearing en banc in this case damages the reputation of this court.... Indeed, the inescapable suggestion of Appellants’ petition for initial hearing en banc is that there are judges on this court who will always side with Appellants on the issue of abortion and will upend standard practice to do so. Today we could have sent a message affirming this court’s impartiality and independence. The majority declined.
Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]
