Bristol Reg'l Women's Ctr., P.C. v. Slatery

• Decision Date: 09 April 2021
• Docket Number: No. 20-6267,20-6267
• Citation: 993 F.3d 489 (Mem)
• Parties: BRISTOL REGIONAL WOMEN'S CENTER, P.C. ; Memphis Center for Reproductive Health, on behalf of itself and its patients, Knoxville Center for Reproductive Health ; Planned Parenthood of Tennessee and North Mississippi, formerly known as Planned Parenthood of Middle and East Tennessee, and Dr. Kimberly Looney, Plaintiffs-Appellees, v. Herbert H. SLATERY, III, Attorney General of Tennessee, Glenn R. Funk, District Attorney General of Nashville, Tennessee, Amy P. Weirich, District Attorney General of Shelby County, Tennessee; Barry P. Staubus, District Attorney General of Sullivan County, Tennessee, Charme P. Allen, Lisa Piercey, Commissioner of the Tennessee Department of Health, and W. Reeves Johnson, Jr., M.D., President of the Tennessee Board of Medical Examiners, in their official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

993 F.3d 489 (Mem)

BRISTOL REGIONAL WOMEN'S CENTER, P.C. ; Memphis Center for Reproductive Health, on behalf of itself and its patients, Knoxville Center for Reproductive Health ; Planned Parenthood of Tennessee and North Mississippi, formerly known as Planned Parenthood of Middle and East Tennessee, and Dr. Kimberly Looney, Plaintiffs-Appellees,

v.Herbert H. SLATERY, III, Attorney General of Tennessee, Glenn R. Funk, District Attorney General of Nashville, Tennessee, Amy P. Weirich, District Attorney General of Shelby County, Tennessee; Barry P. Staubus, District Attorney General of Sullivan County, Tennessee, Charme P. Allen, Lisa Piercey, Commissioner of the Tennessee Department of Health, and W. Reeves Johnson, Jr., M.D., President of the Tennessee Board of Medical Examiners, in their official capacities, Defendants-Appellants.

No. 20-6267

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 9, 2021

ORDER

The court having received a petition for initial hearing en banc, and the petition having been circulated to all active judges of this court, and a majority of judges of this court having favored the suggestion,

It is ORDERED that the petition be, and hereby is, GRANTED.

KAREN NELSON MOORE, Circuit Judge, dissenting from the grant of initial hearing en banc.

DISSENT

Should the merits of this case be heard by a three-judge panel? In virtually every other case that comes before this court, the answer to that simple question is "yes." That answer comes from statutory imperative ( 28 U.S.C. § 46 designates a three-judge panel as the default for federal appellate review), the Federal Rules of Appellate Procedure (Rule 35 provides that hearing a case en banc is "not favored and ordinarily will not be ordered"), and our own Sixth Circuit Internal Operating Procedures (which affirm the "extraordinary nature" of en banc review, see 6th Cir. I.O.P. 35(a)). It also comes from common sense. "Panel 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). Even with a panel decision to work from, 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 rehearing en banc). Without an earlier panel decision, that is even more likely to be the case. Yet a majority of the Sixth Circuit judges in regular active service have voted to hear this case initially en banc. Because that decision lacks a principled basis and tarnishes this court's reputation for impartiality and independence, I dissent.

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.

In recognition of the myriad virtues of our three-judge panel system, Federal Rule of Appellate Procedure 35(a) sets forth two narrow circumstances that may justify initial hearing en banc: "(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." (emphasis added). Appellants invoked both bases in their petition for initial hearing en banc, but neither applies.

First, Appellants contend that initial hearing en banc is necessary to ensure conformity with Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), Cincinnati Women's Services, Inc. v. Taft , 468 F.3d 361 (6th Cir. 2006), and EMW Women's Surgical Center, P.S.C. v. Friedlander , 978 F.3d 418 (6th Cir. 2020). Doubtless, there is disagreement within this circuit about the ultimate outcome of a proper application of those cases—two concerning superficially similar waiting-period laws and the third the applicable constitutional standard for analyzing abortion restrictions. But that hardly renders initial hearing en banc "necessary," Fed. R. App. P. 35(a)(1), when rehearing en banc would remain available after the panel had issued a ruling on the merits—a ruling that would "refine, narrow, and focus [the] issues before the court," Belk , 211 F.3d at 854 (Wilkinson, C.J., concurring in the denial of initial hearing en banc).

Second, Appellants contend that "this case presents a question of exceptional importance: whether a three-judge panel may functionally overrule Supreme Court and Circuit precedent." Pet. at 1; see Fed. R. App. P. 35 (a)(2). Suffice it to say, I take issue with Appellants’ alarmist framing. This case presents the question of the constitutionality of a single state's abortion waiting-period law. It is no more or less "exceptional" than other abortion laws that have proceeded through this court upon consideration of the merits by a three-judge panel before being considered for en banc review. See, e.g. , Preterm-Cleveland v. Himes , 940 F.3d 318 (6th Cir.), reh'g en banc granted, opinion vacated , 944 F.3d 630 (6th Cir. 2019) (judgment pending). Indeed, this case does not involve an imminent, irreversible event, such as an impending election or...