Judge Amul Thapar of the Sixth Circuit Court of Appeals forcefully rebuked his colleagues for ruling that Tennessee must exempt the abortion industry from orders to conserve medical supplies during the COVID-19 crisis, offering insight into how he might rule if President Donald Trump selects him to fill a future Supreme Court vacancy.
Earlier this month, U.S. district judge Bernard Friedman blocked Republican Gov. Bill Lee’s executive order temporarily suspending “non-urgent” medical procedures from being applied to elective abortions. Such emergency orders are based on medical authorities’ guidance to delay procedures both to limit the spread of the coronavirus and to free up time and resources to focus on infected patients.
The Sixth Circuit sided with Friedman, Fox News reports, but Thapar penned a stinging dissent, all but accusing his colleagues’ “deeply flawed” decision of putting ideology ahead of the law.
He said the majority “committed numerous legal errors, made hardly any factual findings, issued an overly broad injunction, and brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic. All because the district court thought that a three-week delay for certain abortions might prevent some unidentified person from having an abortion. Most cases of judicial aggrandizement have costs. But in few are the potential costs so great.”
“Of course, a state always suffers irreparable injury when it’s wrongfully enjoined from enforcing one of its laws. But that’s far from the only harm here,” Thapar continued. “The Governor issued the executive order to preserve critical medical equipment. Every piece of equipment used for something besides the pandemic response could cost a life — the life of someone who acts selflessly to help others in a time of crisis.”
“To sum up: the district court granted an injunction without much effort to apply the relevant law, without specific factual findings, and without any attempt to tailor the remedy to the purported constitutional violation,” the judge concluded. “If that doesn’t count as an abuse of discretion, I don’t know what would.”
Thapar is on Trump’s short list to fill vacancies to the nation’s highest court. While his words do not specify whether he thinks Roe v. Wade was rightly decided or shed light on his approach to judicial precedent, they do display a willingness to push back against pro-abortion judicial activism.
While similar challenges are ongoing in several states, it remains to be seen whether the current dispute will reach the Supreme Court following Texas officials’ decision to relax their state’s suspension of elective procedures, including abortions.