In Bristol Regional Women’s Center, PC v. Slatery, No. 20-6267 (6th Cir. Apr. 9, 2021), the Sixth Circuit took the unusual step under Fed. R. App. P. 35(a) of granting initial hearing en banc of a challenge to Tennessee’s abortion waiting period law.
A prior three-judge panel had denied the state’s motion for a stay pending appeal. See blog entry for February 22, 2021. Judge Moore (joined by Judge White) signed the majority opinion, while Judge Thapar urged that the “majority of active circuit judges” could vote to “hear any ‘case or controversy’ en banc. 28 U.S.C. § 46(c).” The state then petitioned the court to hear the case on the merits en banc, skipping the three-judge panel. A majority of the judges grant the petition in an unsigned order. Judge Moore, joined by Chief Judge Cole, and Judges Clay, White, Stranch, and Donald, submit a dissent from the grant. Judge Moore states that the “decision lacks a principled basis and tarnishes this court’s reputation for impartiality and independence.”
“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 dissent rejects both grounds presented by the state under Rule 35(a) for hearing en banc. “First, Appellants contend that initial hearing en banc is necessary to ensure conformity” with circuit and Supreme Court authority …. 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 ….”
Second, while the state contended that the appeal presented a question of “exceptional importance,” the dissent “take[s] 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.”
The dissent then places the focus on the majority. “[T]his case is being heard initially en banc because a majority has predicted—based on a preliminary stay order that required the panel to determine the likelihood of success but nothing more—that the panel would reach a conclusion on the merits of the case that a majority of the en banc court disagrees with. That prediction is a dangerous one …. The grant of initial hearing en banc in this case damages the reputation of this court, and the majority that has now granted initial hearing en banc is no less implicated by that damage than anyone else. 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.”
“Ultimately, what appears to be ‘exceptional,’ Fed. R. App. P. 35(a)(2), about this case is that it fell to the wrong panel. Encouraged by a member of this court in the decision on the stay motion, Appellants have unabashedly sought to avoid panel review of the merits in a case involving a controversial issue because they dislike its panel’s composition and the panel’s resolution of the stay motion. In endorsing this game of procedural hopscotch, a majority of the en banc court has embarked on an unsettling course.”