Tennessee Down syndrome abortion ban reinstated by federal appeals court

Gammy, a baby born with Down syndrome, is kissed by at a hospital in Chonburi province in China in this undated photo. | (Photo: Damir Sagolj /Reuters)

A federal appeals court has allowed a Tennessee law that bans abortions performed based on an unborn baby being diagnosed with Down syndrome to take effect, reversing an earlier court order blocking the law. 

The U.S. Court of Appeals for the 6th Circuit issued an order Wednesday allowing the law passed in 2020 that bans abortions based on Down syndrome, race or gender to be reinstated. The ruling reversed a temporary injunction.

The circuit court also refused to hear a challenge to the state law until after the U.S. Supreme Court issued a decision on Mississippi’s 15-week abortion ban after hearing arguments in Dobbs v. Jackson Women’s Health Organization in December. 

While the court’s order came without comment, a dissent was authored by Circuit Judge Karen Nelson Moore. The Clinton appointee argued the court’s action amounts to “stay-and-delay tactics” that “subvert the normal judicial process.”

“For now, the majority’s decision to grant a partial stay of the district court’s preliminary injunction while delaying our consideration of the case has the effect of reversing a thoughtful and thorough district court opinion indefinitely,” wrote Moore.

“If the majority ultimately decides to apply a currently unknown and undecided standard to Tennessee’s previability bans—without the benefit of district court factfinding tailored to that standard—such a decision would manifest reckless overconfidence and unprincipled disregard for the normal judicial process.”

The decision was praised by pro-life activists who advocate for laws limiting abortion. 

“Abortions based on sex, race or disability diagnosis are a form of modern-day eugenics, permitted at any point in pregnancy – even right up to birth – in America thanks to the Supreme Court’s extreme precedents,” Marjorie Dannenfelser, the president of the national pro-life lobbying organization Susan B. Anthony List, said in a statement

“The devastating toll of abortion on minority communities, people with Down syndrome, and thousands of missing baby girls is well documented. Tennessee’s landmark pro-life laws reflect the overwhelming consensus of Americans who oppose lethal discrimination against unborn children and want far greater limits on abortion than our national status quo allows.”

Rabia Muqaddam, a staff attorney with the pro-choice advocacy group Center for Reproductive Rights, argued in a statement that the Tennessee law is "unconstitutional."

"Pregnant people are the ones best suited to make decisions about their own pregnancies, and politicians should not get to interrogate a person’s reasons for seeking an abortion,” the activist said, according to The Associated Press.

Signed into law by Gov. Bill Lee in 2020, and also known as the “reasons ban,” the law also banned most abortions after a fetal heartbeat is detected, which can be as early as six weeks into a pregnancy. But the heartbeat restriction has remained blocked by courts. 

This week's ruling comes after a 6th Circuit panel blocked the provision banning Down syndrome abortions last September and upheld an earlier block on the heartbeat abortion provision. 

The ruling comes as other states have also passed laws restricting abortion based on genetic abnormalities. Last September, a federal judge blocked a portion of an Arizona law that criminalizes an abortion "knowing that the abortion is sought because of a genetic abnormality of the child."  

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