Sixth Circuit Preserves (But Narrows) Injunction Blocking Tennessee Governor's Order Suspending Abortions

Like many such orders, the Governor's order suspended until April 30 all "surgical and invasive procedures that are elective and non-urgent," which included abortions.

From today's opinion by Judge Karen Nelson Moore, joined by Judge Helen White, in Adams & Boyle, P.C. v. Slattery:

Were there no public health crisis, then, the analysis would be relatively straightforward: by banning all procedural abortions for a three-week period—limited by only a vague, undefined exception for women who needed the abortion to avoid facing "serious adverse health consequences"—EO-25 placed "a substantial obstacle in the path of" Tennessee women attempting to obtain a procedural abortion during that time period, and thus constituted an undue burden….

But, of course, we are not living in normal times; we are living in pandemic times. And so the State points us to Jacobson v. Massachusetts (1905), a century-old case in which the Supreme Court held that a city faced with the risk of a viral outbreak could require all of its adult residents to be vaccinated against that virus…. [But] even if Jacobson's more state-friendly standard of review is the test we should be applying here—rather than the usual Roe/Casey standard—we still think that Plaintiffs are likely to succeed on the merits of their constitutional claim….

Leave aside the myriad factual differences between this case and Jacobson v. Massachusetts—asking a person to get a vaccination, on penalty of a small fine, is a far cry from forcing a woman to carry an unwanted fetus against her will for weeks, much less all the way to term—and the challenge of reconciling century-old precedent with the Supreme Court's more recent constitutional jurisprudence. The bottom line is that, even accepting Jacobson at face value, it does not substantially alter our reasoning here. As of today, a woman's right to a pre-viability abortion is a part of "the fundamental law." And, for the reasons set forth above, EO-25, at least in some applications—most notably, those that would prevent a woman from exercising her right in-state altogether, or would require her to undergo a more invasive and costlier procedure that she otherwise would have—constitutes "beyond question, a plain, palpable invasion of rights secured by [that] fundamental law."

More still, although mandatory vaccination clearly had a "real" and "substantial" relation to the state's public health goals in Jacobson—indeed, as the Supreme Court emphasized, the importance of vaccination was widely accepted by the medical community—it is much harder to discern that relation here, given the paltry amount of PPE saved, and limited amount of in-person contact avoided, by halting procedural abortions for a three-week period (not to mention the lack of expert medical opinion in support of the State's position). And although the State cites language in Jacobson stating, "[i]t is no part of the function of a court or a jury to determine which one of two [responses] [is] likely to be most effective for the protection of the public against disease"—and suggests that this means we must defer uncritically to the State's ipse dixit that a three-week bar on procedural abortions is necessary to save critical PPE and preclude risky interpersonal contact—neither Jacobson in particular, nor Supreme Court abortion precedent in general, requires such abdication. See, e.g., Jacobson, 197 U.S. at 34–38 (discussing the voluminous medical evidence in support of vaccination); Hellerstedt, 136 S. Ct. at 2310 (noting that uncritical deference to a legislature's factual findings regarding abortion is inappropriate).

The dissent disagrees with us on this last point, arguing that the State's three-week bar on procedural abortions does have a "real and substantial relationship to the current pandemic," and, indeed, that, if we don't allow that bar to go into effect, "doctors, nurses, and first responders will die …." But the dissent roots these bold assertions in nothing more than the State's say-so. The Center for Disease Control and Prevention ("CDC") webpage the dissent cites certainly does not support the State's position. That webpage simply recommends that U.S. healthcare facilities preserve PPE and cancel "elective and non-urgent procedures/appointments"; it says absolutely nothing about abortion. And the State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. This is unsurprising because, as far as we can tell, every serious medical or public health organization to have considered the issue has said the opposite. So, in our view, the dissent's position is not so much deference as it is abdication.

Of course, we do not mean to suggest that abortion rights during a public health crisis are identical to abortion rights during normal times. If Jacobson teaches us anything, it is that context matters. And as noted in Section B, infra, we have tried to accommodate for that context here. What we will not countenance, however, is the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations. Such a notion is incompatible not only with Jacobson, but also with American constitutional law writ large….

[T]he State raises the specter of further COVID-19 contamination—and the accordant risk of yet more Tennesseans dying from the disease—saying that such harms are "certain to occur" if procedural abortions are allowed to take place. Defs.' Opp. Br. ("Every procedure that is postponed, and every item of PPE that is preserved, furthers the State's compelling interests in halting the spread of COVID-19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected."). We cannot gainsay the threat posed by COVID-19; as we stated at the outset of the opinion, these are extraordinary times calling for extraordinary measures.

But, with respect to just those procedural abortions affected by the district court's injunction (as modified below), the State's proffered harm is purely speculative. As the district court noted, the State presented "no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions," and the State has not remedied that shortcoming on appeal.

In response, the State suggests that if we permit this one exemption, surely the joint-replacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25's bar on elective procedures will follow, with similar "minimal impact" arguments in tow. But this contention fails to appreciate that abortion is fundamentally different than a hip replacement or a cataract removal: not only is abortion entitled to explicit constitutional protection, but also, as the district court appropriately recognized, it is a uniquely "time-sensitive procedure," both as a biological matter and a regulatory matter. After all, how many other elective procedures have mandatory 48-hour waiting periods beforehand, and are available in only four cities state-wide? So if there is a slippery slope here, we fail to see it….

[T]he district court's order is just one sentence long: "Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions." …  [T]his perfunctory order is overbroad…. [B]ecause a preliminary injunction is an extraordinary remedy, a district court must be careful to "limit the solution to the problem." And, here, the undue burden problem identified by Plaintiffs encompassed three classes of patients, which Plaintiffs helpfully identified in their district court brief seeking injunctive relief:

[1] patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020 [the current scheduled termination date for EO-25];

[2] patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and]

[3] patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020.

Consequently, we direct the district court to modify its injunction so that it enjoins the State from enforcing EO-25 against Plaintiffs to the extent they provide procedural abortions to these three categories of patients. And, to be clear, this second category of patients includes women who, in the good faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration procedure if their procedures are delayed until after April 30, 2020.

Judge Amul Thapar dissented, reasoning, among other things,

[T]he basic principle of Jacobson[ is] that states may respond to emergencies in the face of substantive-due-process rights, so long as they act reasonably and don't single out specific rights or persons for disfavored treatment.

No one claims that the State of Tennessee has singled out specific rights or persons in its response to the current pandemic. The executive order in this case applies to all non-essential medical procedures. And again, the Governor has issued several other orders that apply to all persons and that affect every aspect of daily life across the state.

Nor have the plaintiffs shown that the State has acted unreasonably in requiring its residents to postpone non-essential medical procedures for a three-week period. Just contrast this case with the facts of Jacobson, where the Supreme Court upheld a state's authority to forcibly vaccinate individuals. If the State can physically invade a person's body in response to an emergency, then it surely may require people to delay certain medical procedures for the same purpose….

The majority also dismisses the State's interests on the ground that the executive order has no "real" and "substantial" relationship to the current pandemic. That claim is remarkable given that the order follows recommendations from our nation's leading public-health institution. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Strategies to Optimize the Supply of PPE and Equipment (last visited Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (explaining that equipment "shortages are currently posing a tremendous challenge to the US healthcare system" and recommending the cancellation of "elective and non-urgent procedures/appointments").

Plus, Jacobson clearly tells us that it's "no part of the function of a court or a jury to determine which one of two modes [is] likely to be the most effective for the protection of the public against disease." The majority doesn't explain why our court is an exception to that rule. And the amicus briefs the majority cites to discredit the State's rationale for the executive order "are more formidable by their number than by their inherent value."

One need only open a newspaper to appreciate the importance of preserving medical equipment at this time. {The district court brushed off these concerns, saying the plaintiffs have already taken measures to reduce their use of medical equipment during surgical abortions. The district court apparently thought that the State would be harmed only if surgical abortions used an "appreciable amount" of medical equipment. (The Majority seems to think the same.) But neither the district court nor the Majority is in any position to second-guess the Governor's judgment as to the amount of equipment that is really necessary to keep healthcare workers alive.} So if nothing else, Jacobson forecloses the plaintiffs' claim.

Note that Judge Thapar concluded that there wasn't any evidence in the record of any particular women who were between the 17-week mark and 20-week mark in their pregnancies, and for whom delay would thus mean prohibition. He thus didn't opine whether, as to those women, the Governor's order would indeed need to be blocked.