Case: 20-6267 Document: 74-1 Filed: 04/09/2021 Page: 1
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`100 EAST FIFTH STREET, ROOM 540
`POTTER STEWART U.S. COURTHOUSE
`CINCINNATI, OHIO 45202-3988
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`Deborah S. Hunt
`Clerk
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`Tel. (513) 564-7000
`www.ca6.uscourts.gov
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`Filed: April 09, 2021
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`Ms. Sarah Campbell
`Mr. Mark Alexander Carver
`Office of the Attorney General of Tennessee
`P.O. Box 20207
`Nashville, TN 37202-0207
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`Mr. Michael J. Dell
`Kramer, Levin, Naftalis & Frankel
`1177 Avenue of the Americas
`New York, NY 10036
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`Ms. Jessica Lynn Ellsworth
`Hogan Lovells
`555 13th Street, N.W.
`Washington, DC 20004
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`Ms. Sarah A. Hunger
`Office of the Attorney General of Illinois
`100 W. Randolph Street, 12th Floor
`Chicago, IL 60601
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`Ms. Autumn Chandra Katz
`Center for Reproductive Rights
`199 Water Street
`22nd Floor
`New York, NY 10038
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`Mr. Matthew Franklin Kuhn
`Office of the Attorney General of Kentucky
`700 Capitol Avenue
`Suite 118
`Frankfort, KY 40601
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`Case: 20-6267 Document: 74-1 Filed: 04/09/2021 Page: 2
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`Mr. Andrew M. Leblanc
`Milbank
`1850 K Street, N.W.
`Suite 1100
`Washington, DC 20006
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`Ms. Sarah Mac Dougall
`Covington & Burling
`620 Eighth Avenue
`New York, NY 10018
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`Mr. Jason Michael Moff
`Kramer, Levin, Naftalis & Frankel
`1177 Avenue of the Americas
`New York, NY 10036
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`Michelle Katz Moriarty
`Center for Reproductive Rights
`199 Water Street
`22nd Floor
`New York, NY 10038
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`Ms. Rabia Muqaddam
`Center for Reproductive Rights
`199 Water Street, 22nd Floor
`New York, NY 10038
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`Elizabeth B. Murrill
`Office of the Attorney General of Louisiana
`P.O. Box 94005
`Baton Rouge, LA 70804-9005
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`Ms. Kimberly A. Parker
`Wilmer Hale
`1875 Pennsylvania Avenue, N.W.
`Washington, DC 20006
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`Ms. Maithreyi Ratakonda
`Planned Parenthood Federation of America
`123 William Street, 10th Floor
`New York, NY 10038
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`Mr. Kevin H. Theriot
`Alliance Defending Freedom
`15100 N. 90th Street
`Scottsdale, AZ 85260
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`Case: 20-6267 Document: 74-1 Filed: 04/09/2021 Page: 3
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`Mr. Scott P. Tift
`Barrett, Johnston, Martin & Garrison
`414 Union Street
`Suite 900
`Nashville, TN 37219
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`Re: Case No. 20-6267, Bristol Regional Women's Ctr v. Herbert Slatery, III, et al
`Originating Case No. : 3:15-cv-00705
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`Dear Counsel,
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` The attached order designated for full-text publication was filed today in this case.
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`cc: Ms. Lynda M. Hill
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`Enclosure
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`Yours very truly,
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`Deborah S. Hunt, Clerk
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`Cathryn Lovely, Opinions Deputy
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 1
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`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 21a0081p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`No. 20-6267
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`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,
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`Plaintiffs-Appellees,
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`v.
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`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,
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`Defendants-Appellants.
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`┐
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`On Petition for Initial Hearing En Banc.
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`United States District Court for the Middle District of Tennessee at Nashville;
`No. 3:15-cv-00705—Bernard A. Friedman, District Judge.
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`Decided and Filed: April 9, 2021
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`Before: COLE, Chief Judge; MOORE, CLAY, GIBBONS, SUTTON, GRIFFIN,
`KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,
`NALBANDIAN, READLER, and MURPHY, Circuit Judges.
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 2
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`No. 20-6267
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`Bristol Reg’l Women’s Center, P.C. et al. v. Slatery et al.
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`Page 2
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`_________________
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`COUNSEL
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`ON PETITION AND REPLY: Sarah K. Campbell, Mark Alexander Carver, OFFICE OF THE
`TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee,
`for Appellants.
`ON RESPONSE: Autumn Katz, Michelle Moriarty, Rabia Muqaddam, CENTER FOR
`REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED
`PARENTHOOD FEDERATION OF AMERICA, New York, New York, Scott Tift, BARRETT
`JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, Jason M.
`Moff, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York for Appellees.
`ON BRIEF: Matthew F. Kuhn, OFFICE OF THE ATTORNEY GENERAL, Frankfort,
`Kentucky, Elizabeth B. Murrill, OFFICE OF THE ATTORNEY GENERAL, Baton Rouge,
`Louisiana, for Amici Curiae.
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`The En Banc Court of the Sixth Circuit Court of Appeals issued an order. MOORE, J.
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`(pp. 3–6), delivered a separate opinion dissenting from the grant of the petition for initial hearing
`en banc, in which COLE, C.J., and CLAY, WHITE, STRANCH, and DONALD, JJ., joined.
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`_________________
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`ORDER
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`_________________
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`The court having received a petition for initial hearing en banc, and the petition having
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`been circulated to all active judges of this court, and a majority of judges of this court having
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`favored the suggestion,
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`It is ORDERED that the petition be, and hereby is, GRANTED.
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 3
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`No. 20-6267
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`Bristol Reg’l Women’s Center, P.C. et al. v. Slatery et al.
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`Page 3
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`_________________
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`DISSENT
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`_________________
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`KAREN NELSON MOORE, Circuit Judge, dissenting from the grant of initial hearing en
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`banc. Should the merits of this case be heard by a three-judge panel? In virtually every other
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`case that comes before this court, the answer to that simple question is “yes.” That answer
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`comes from statutory imperative (28 U.S.C. § 46 designates a three-judge panel as the default for
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`federal appellate review), the Federal Rules of Appellate Procedure (Rule 35 provides that
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`hearing a case en banc is “not favored and ordinarily will not be ordered”), and our own Sixth
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`Circuit Internal Operating Procedures (which affirm the “extraordinary nature” of en banc
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`review, see 6th Cir. I.O.P. 35(a)). It also comes from common sense. “Panel decisions refine,
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`narrow, and focus issues before the court.” Belk v. Charlotte-Mecklenburg Bd. of Educ., 211
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`F.3d 853, 854 (4th Cir. 2000) (Wilkinson, C.J., concurring in the denial of initial hearing en
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`banc). Even with a panel decision to work from, hearing a case en banc is “a rarely satisfying,
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`often unproductive, always inefficient process.” Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir.
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`2010) (Sutton, J., concurring in the denial of rehearing en banc). Without an earlier panel
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`decision, that is even more likely to be the case. Yet a majority of the Sixth Circuit judges in
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`regular active service have voted to hear this case initially en banc. Because that decision lacks a
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`principled basis and tarnishes this court’s reputation for impartiality and independence, I dissent.
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`This case concerns abortion. Specifically, it concerns the constitutionality of a Tennessee
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`abortion law that sets a 48-hour waiting period before a woman can obtain an abortion. After the
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`district court held Tennessee’s waiting-period law unconstitutional and permanently enjoined its
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`enforcement, the officials defending the law appealed. Appellants sought a stay pending appeal.
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`A three-judge panel denied that request, with Judge White and myself concluding that Appellants
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`were unlikely to succeed on the merits of their appeal. Judge Thapar disagreed. So vehemently
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`did he disagree that he called for “immediate correction” of the stay order, urging Appellants to
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`seek initial hearing en banc. Appellants readily obliged, filing a petition for initial hearing en
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`banc. By granting that petition, a majority of this court has sent a dubious message about its
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 4
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`No. 20-6267
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`Bristol Reg’l Women’s Center, P.C. et al. v. Slatery et al.
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`Page 4
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`willingness
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`to
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`invoke
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`that extraordinary—and extraordinarily disfavored—procedure
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`in
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`ideologically charged cases.
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`In recognition of the myriad virtues of our three-judge panel system, Federal Rule of
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`Appellate Procedure 35(a) sets forth two narrow circumstances that may justify initial hearing en
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`banc: “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s
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`decisions; or (2) the proceeding involves a question of exceptional importance.” (emphasis
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`added). Appellants invoked both bases in their petition for initial hearing en banc, but neither
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`applies.
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`First, Appellants contend that initial hearing en banc is necessary to ensure conformity
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`with Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
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`Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006), and EMW Women’s
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`Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418 (6th Cir. 2020). Doubtless, there is
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`disagreement within this circuit about the ultimate outcome of a proper application of those
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`cases—two concerning superficially similar waiting-period laws and the third the applicable
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`constitutional standard for analyzing abortion restrictions. But that hardly renders initial hearing
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`en banc “necessary,” Fed. R. App. P. 35(a)(1), when rehearing en banc would remain available
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`after the panel had issued a ruling on the merits—a ruling that would “refine, narrow, and focus
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`[the] issues before the court,” Belk, 211 F.3d at 854 (Wilkinson, C.J., concurring in the denial of
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`initial hearing en banc).
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`Second, Appellants contend that “this case presents a question of exceptional importance:
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`whether a three-judge panel may functionally overrule Supreme Court and Circuit precedent.”
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`Pet. at 1; see Fed. R. App. P. 35 (a)(2). Suffice it to say, I take issue with Appellants’ alarmist
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`framing. This case presents the question of the constitutionality of a single state’s abortion
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`waiting-period law. It is no more or less “exceptional” than other abortion laws that have
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`proceeded through this court upon consideration of the merits by a three-judge panel before
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`being considered for en banc review. See, e.g., Preterm-Cleveland v. Himes, 940 F.3d 318 (6th
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`Cir.), reh’g en banc granted, opinion vacated, 944 F.3d 630 (6th Cir. 2019) (judgment pending).
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`Indeed, this case does not involve an imminent, irreversible event, such as an impending election
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`or execution, which has—still on rare occasion—served as an exceptional justification for
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 5
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`No. 20-6267
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`Bristol Reg’l Women’s Center, P.C. et al. v. Slatery et al.
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`Page 5
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`skipping over a three-judge panel in favor of initial hearing en banc. See, e.g., Ohio Republican
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`Party v. Brunner, 544 F.3d 711, 715 (6th Cir.) (en banc), vacated, 555 U.S. 5 (2008); Cooey v.
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`Bradshaw, 338 F.3d 615, 616 (6th Cir. 2003) (en banc) (order).
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`No, this case is being heard initially en banc because a majority has predicted—based on
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`a preliminary stay order that required the panel to determine the likelihood of success but nothing
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`more—that the panel would reach a conclusion on the merits of the case that a majority of the en
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`banc court disagrees with. That prediction is a dangerous one. “We have long urged that the
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`public resist a predetermined view of the judicial function—the notion that certain judges
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`invariably resolve certain cases in certain ways. If we wish the public to resist this view of us,
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`we must surely first resist this view of ourselves.” Belk, 211 F.3d at 855 (Wilkinson, C.J.,
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`concurring in the denial of initial hearing en banc). The grant of initial hearing en banc in this
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`case damages the reputation of this court, and the majority that has now granted initial hearing en
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`banc is no less implicated by that damage than anyone else. Indeed, the inescapable suggestion
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`of Appellants’ petition for initial hearing en banc is that there are judges on this court who will
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`always side with Appellants on the issue of abortion and will upend standard practice to do so.
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`Today we could have sent a message affirming this court’s impartiality and independence. The
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`majority declined.
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`In the not-so-distant past we resisted the urge to wield this court’s en banc authority so
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`indiscriminately, even when rejecting a petition for rehearing en banc would leave what some
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`believed to be an incorrect decision in place absent a rare grant of certiorari by the Supreme
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`Court. Why? Because “[t]he trust implicit in delegating authority to three-judge panels to
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`resolve cases as they see them would not mean much if the delegation lasted only as long as they
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`resolved the cases correctly as others see them.” Issa v. Bradshaw, 910 F.3d 872, 877–78 (6th
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`Cir. 2018) (Sutton, J., concurring in the denial of rehearing en banc). That logic holds even
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`stronger when faced with a petition for initial hearing en banc, which could be rejected with the
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`confidence that any perceived exceptional error in the panel’s eventual resolution of the case on
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`the merits could be cured through rehearing en banc. Alas, it seems to me that we have moved
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`on to sorrier times.
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`Case: 20-6267 Document: 74-2 Filed: 04/09/2021 Page: 6
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`No. 20-6267
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`Bristol Reg’l Women’s Center, P.C. et al. v. Slatery et al.
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`Page 6
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`Ultimately, what appears to be “exceptional,” Fed. R. App. P. 35(a)(2), about this case is
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`that it fell to the wrong panel. Encouraged by a member of this court in the decision on the stay
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`motion, Appellants have unabashedly sought to avoid panel review of the merits in a case
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`involving a controversial issue because they dislike its panel’s composition and the panel’s
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`resolution of the stay motion. In endorsing this game of procedural hopscotch, a majority of the
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`en banc court has embarked on an unsettling course. Our standard practice is for a panel to issue
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`a fully considered opinion on the merits of a case before we consider whether en banc review
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`may be appropriate. There is no principled basis for departing from that practice here.
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`Accordingly, I dissent from the grant of initial hearing en banc.
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`ENTERED BY ORDER OF THE COURT
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`___________________________________
`Deborah S. Hunt, Clerk
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