Anti-abortion protesters demonstrate in front of the U.S. Supreme Court Wednesday, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability. (AP Photo/Jose Luis Magana)

NASHVILLE — The 6th U.S. Circuit Court of Appeals will rehear a case that resulted in blocking Tennessee's "fetal heartbeat" law, which seeks to criminalize abortion when a fetal heartbeat is detected — as early as six weeks into pregnancy.

Tennessee's law also provides criminal penalties if an abortion is performed based on the fetus' race or sex or if the fetus has been diagnosed with Down syndrome.

A majority of the 16-judge panel agreed to rehear the case even as the U.S. Supreme Court's conservative majority earlier in the day signaled in a Mississippi abortion case that they were open to allowing states to ban the procedure much earlier in pregnancy and possibly overturn its landmark 1973 Roe v. Wade ruling, which established seeking an abortion as a right in most instances in the first trimester. The Mississippi law bans abortions at 15 weeks.

Tennessee's law has a tiered approach to the ban, with the most stringent restriction taking place at six weeks. If that's struck down, it provides other options increasing the time, the goal being to put in place the most restrictive abortion law the U.S. Supreme Court ultimately accepts.

In September, a 6th Circuit three-judge panel blocked the Tennessee provisions, upholding an earlier decision by U.S. District Judge William Cambell Jr., who said the plaintiffs were likely to succeed in challenging the law, writing that "when a law threatens criminal sanctions, such vague provisions and potential varied interpretations cannot stand."

"The district court properly issued a preliminary injunction because the provisions are constitutionally unsound," Senior U.S. Circuit Judge Martha Craig Daughtrey of Nashville wrote for the panel's majority.


Order directing a hearing on Tennessee's 2020 'fetal heartbeat' bill


Tennessee Attorney General Herbert Slatery's office said Wednesday in a statement that the court's action Wednesday is the second time this year that the full circuit court has granted a rehearing in a case challenging Tennessee abortion law.

"The first time, the court upheld Tennessee's 48-hour waiting period. We are optimistic that the court will likewise uphold the laws at issue in this case," the statement reads.

Francie Hunt, executive director of Tennessee Advocates for Planned Parenthood, did not respond to a request for comment.

Tennessee Republican lawmakers wrangled for several years over how far to go in challenging Roe v. Wade — they failed to reach agreement in 2019 amid concerns it might backfire in courts. Instead, they wound up passing the "Human Life Protection Act," referred to as the "trigger" bill. It bans most abortions but would only take effect if the U.S. Supreme Court were to overturn its 1973 ruling.

In 2020, Lee waded in with his own legislation which ultimately passed. It contains the fetal heartbeat ban, as well as the provision making abortions based on race, sex and Down syndrome classified as Class C felonies, which carry penalties of three to 15 years in prison as well as fines of up to $10,000.

Contact Andy Sher at or 615-255-0550. Follow on Twitter @AndySher1.