Court: Tennessee Can Enforce Ban on Abortions Because of Down Syndrome Diagnoses

Tennessee Gov. Bill Lee takes part in a discussion on state-level criminal justice reform in Nashville, Tenn., on April 17, 2019. (Mark Humphrey/AP Photo)

A federal court on Friday ruled that the state of Tennessee can enforce a ban on abortions because of diagnoses of Down syndrome, or because of the race or gender of the unborn baby.

The so-called “reason bans” were signed into law by Gov. Bill Lee, a Republican, in July as part of a larger abortion bill, but the legislation was immediately blocked by a lower court.

The 6th Circuit Court of Appeals ruled Friday to let the law go into effect while litigation against the law plays out. The ruling came after the state requested a preliminary injunction against the lower court’s ruling.

Plaintiffs, which include abortion providers, argued that the section of the law in question—which prohibits a physician from performing an abortion if the physician “knows” that the abortion is sought “because of” the sex, race, or Down syndrome diagnosis of the unborn child—was likely unconstitutionally vague, but state officials say the terms are defined in the section.

Plaintiffs also alleged that a medical emergency portion of the section likely violated the Constitution.

“Plaintiffs have not shown a likelihood of success on the merits of their vagueness challenges to Section 217,” the 11-page ruling states.

“On the other hand, the district court’s preliminary injunction of Section 217 ’subjects [the state] to ongoing irreparable harm.'”

The court quoted Supreme Court Justice John Roberts, from the 2012 ruling in Maryland v. King. “Any time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury,” Roberts ruled at the time.

“The equitable factors therefore weigh in favor of granting a stay,” the appeals court ruled.

An examination room at an abortion provider in South Bend, Indiana, on June 19, 2019. (Scott Olson/Getty Images)

Judge Eric Clay, an appointee of President Bill Clinton, dissented, arguing that the district court properly enjoined the section of the law because plaintiffs are likely to succeed in proving the provision is unconstitutionally vague.

Lee wrote in a statement: “Every life is precious and every child has inherent human dignity. Our law prohibits abortion based on the race, gender, or diagnosis of Down syndrome of the child and the court’s decision will save lives. Protecting our most vulnerable Tennesseans is worth the fight.”

The Center for Reproductive Rights, which describes itself as using “the power of law to advance reproductive rights as fundamental human rights around the world,” said it opposed the ruling.

“These kind of reason bans inflict harm by peddling stigma around abortions and stereotypes of Asian Americans and black and brown communities, and by attempting to co-opt the mantle of disability rights,” the group said in a statement.

“Today’s ruling allows this abortion ban to remain in place while the case continues, and will cause immediate harm to Tennesseans in the middle of making deeply personal medical decisions,” added Alexis McGill Johnson, president of the pro-abortion Planned Parenthood Federation of America, in a statement.

Down syndrome occurs in approximately one in every 700 babies born in the United States, according to the Centers for Disease Control and Prevention. The condition occurs in people with an extra chromosome, or a small package of genes, and causes both mental and physical challenges for the baby.

The case is Memphis Center for Reproductive Health v. Slatery (3:20-cv-00501).