Judges block Tennessee ban on abortion due to prenatal diagnosis of Down syndrome

Federal judges have blocked abortion restrictions in Tennessee which banned the procedure if prompted by a prenatal Down syndrome diagnosis or the race or gender of the fetus.

The ruling also kept the block of a six-week abortion ban in place.

Tennessee’s Republican Governor Bill Lee introduced limits on reproductive rights last year. The law gained notoriety as one of the harshest abortion rights restrictions in the US.

The Sixth US Circuit Court of Appeals in Cincinnati upheld earlier rulings that blocked the state’s ban on abortion after six weeks of pregnancy, a time when most are unaware that they are pregnant.

Judge Martha Craig Daughtrey wrote: “We take note that state legislatures recently have passed more anti-abortion regulations than perhaps at any other time in this country’s history. However, this development is not a signal to the courts to change course.”

“It is, in fact, just the opposite. The judiciary exists as a check on majoritarian rule,” she added.

Down syndrome is a genetic condition that leads to setbacks in development as well as medical issues such as heart defects, respiratory and hearing problems.

The National Down Syndrome Society says that around 6,000 babies a year are born with the condition – around one in every 700 babies.

The US Department of Justice has sued the state of Texas over its ban on abortions after six weeks following the US Supreme Court majority decision not to act and allow the law to take effect on 1 September.

The law allows private citizens to sue anyone who helps facilitate an abortion, with the incentive of a $10,000 payout.

The restrictions in Tennessee include felony-level penalties for abortion providers.

Deputy director of the ACLU’s Reproductive Freedom Project, Brigitte Amiri, said: “The court of appeals today rightly respected nearly 50 years of precedent by blocking these dangerous laws. With all eyes on the devastating effect of Texas’ abortion ban, this is welcome news for Tennesseans and the rule of law.”

The Supreme Court case of Roe v Wade set the precedent in 1973 that abortions should be legal until the point when a fetus can survive outside the womb, which is usually after around 24 weeks of pregnancy.

Samantha Fisher, a spokesperson for Tennessee Attorney General Herbert Slatery, said his office was disappointed with the ruling and will seek further review.

Both the six-week ban and the so-called “reasons ban” were blocked by a lower federal court just hours after Governor Lee signed the package of anti-abortion measures into Tennessee law in 2020.

A panel of judges on the Sixth Circuit later ruled that the state of Tennessee could still enforce the reasons ban even as it was being fought in court.

The ruling on Friday was made by a three-judge panel, two of whom were not part of the previous ruling.

The most recent decision states that the reasons ban doesn’t provide providers with “a reasonable opportunity to know when they are permitted to perform an abortion”.

“As a result of this ambiguity and uncertainty, many abortion providers might well choose to steer clear of anything that could possibly be construed as prohibited conduct, effectuating the inaccessibility of a right deemed fundamental under the Constitution,” Judge Daughtrey wrote.

The Sixth Circuit allowed a similar ban, also based on a Down syndrome diagnosis, to go into law in Ohio in April. It reversed two previous decisions by the court that blocked the enforcement of the law first put in place in 2017.

In the Friday opinion, the panel of judges said the split outcomes were due to differences in the Ohio law and the facts of each case.

The Ohio law doesn’t touch upon reasons of sex and race, the opinion says.

The full panel agreed to keep the block of the six-week abortion ban in Tennessee. Judge Amul Thapar disagreed on the reasons ban, but also commented more broadly on abortion.

“The courts should return this choice to the American people - where it belongs,” Judge Thapar wrote.

“The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly. And if the public is unhappy, it can fight back at the ballot box.”

The Independent has reached out to the office of Governor Lee for comment.

Associated Press contributed to this report