On Friday, December 13, the Sixth Circuit voted to send Preterm-Cleveland v Lance Himes to en banc consideration. The above order vacates the majority ruling of the three Judge panel.
The above was the Opinion and Dissent of the three Judge panel. They had voted to uphold the ruling of the District Court and sustain the preliminary injunction against the Ohio Down’s Syndrome Abortion Act. Chief United States Circuit Judge R. Guy Cole Jr. and United States Circuit Judge Bernice B. Donald were in the majority, with Donald writing for the panel. Senior United States Circuit Judge Alice M. Batchelder dissented.
All Active Judges of the Sixth Circuit may participate in en banc proceedings on this case, as may Senior Judge Batchelder as she participated in the original panel.
56 Chief Judge R. Guy Cole Jr. Columbus, OH 1951 1995–present 2014–present — Clinton
55 Circuit Judge Karen Nelson Moore Cleveland, OH 1948 1995–present — — Clinton
57 Circuit Judge Eric L. Clay Detroit, MI 1948 1997–present — — Clinton
59 Circuit Judge Julia Smith Gibbons Memphis, TN 1950 2002–present — — G.W. Bush
61 Circuit Judge Jeffrey Sutton Columbus, OH 1960 2003–present — — G.W. Bush
64 Circuit Judge Richard Allen Griffin Traverse City, MI 1952 2005–present — — G.W. Bush
66 Circuit Judge Raymond Kethledge Ann Arbor, MI 1966 2008–present — — G.W. Bush
67 Circuit Judge Helene White Detroit, MI 1954 2008–present — — G.W. Bush
68 Circuit Judge Jane Branstetter Stranch Nashville, TN 1953 2010–present — — Obama
69 Circuit Judge Bernice B. Donald Memphis, TN 1951 2011–present — — Obama
70 Circuit Judge Amul Thapar Covington, KY 1969 2017–present — — Trump
71 Circuit Judge John K. Bush Louisville, KY 1964 2017–present — — Trump
72 Circuit Judge Joan Larsen Ann Arbor, MI 1968 2017–present — — Trump
73 Circuit Judge John B. Nalbandian Cincinnati, OH 1969 2018–present — — Trump
74 Circuit Judge Chad Readler Columbus, OH 1972 2019–present — — Trump
75 Circuit Judge Eric E. Murphy Columbus, OH 1979 2019–present — — Trump
53 Senior Circuit Judge Alice M. Batchelder Medina, OH 1944 1991–2019 2009–2014 2019–present G.H.W. Bush
However Judge Eric E. Murphy has recused himself from this case.
I am unable to find either the vote breakdown or votes of individual Judges, so I don’t know who voted to take this case en banc. Given her dissent in the original panel, I presume Batchelder voted yes. I will further assume all 5 of the unrecused Trump Judges voted yes. Since there were 16 Judges voting, 9 would have been needed to send this to en banc.
So they would have needed at least 3 of the G.W. Bush Judges and perhaps may have gotten 4 or all 5, although that is NOT certain by any means as some of G.W. Bush’s nominees were not doctrinaire conservatives, particularly on abortion.
The fact that they did successfully get an en banc hearing pretty much guarantees that the decision will be reversed and the law will be permitted to go into effect. With no chance of getting a preliminary injunction from the Supreme Court, most likely this statute will continue in effect until the District Court completes its trial proceedings and renders a final judgement on the case, at which point we go up the appeal ladder a second time.
Of course, I find this law a ridiculous atrocity, but we ALL know that the point of all this is to set up a showdown at the Supreme Court on Roe v Wade. We aren’t very far from that showdown.
