Federal judge strikes down Tennessee’s 48 hour waiting period

By Dave Andrusko

Tennessee Right to Life responded with indignation to Wednesday’s decision by a federal judge to declare unconstitutional a 48 hour waiting period before a woman obtains an abortion:

With complete disregard for the health and safety of Tennessee’s women and unborn children, Senior United States District Judge Bernard A. Friedman permanently enjoined enforcement of Tennessee’s 48-hour waiting period.

This common sense policy, in effect since 2015, has resulted in the saving of countless unborn lives and a lack of regret by mothers who had time to further consider her decision following provision of informed consent information. The extra 48-hours also allowed mothers the opportunity to identify life-affirming resources in her community or region.

The decision blocks the state from enforcing the law.

Judge Friedman wrote, in part,

“Defendants have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee. It is apparent that this waiting period unduly burdens women’s right to an abortion and is an affront to their ‘dignity and autonomy,’ ‘personhood’ and ‘destiny,’ and ‘conception of . . . [their] place in society,’” Friedman wrote.

Samantha H. Fisher, a spokesperson for the Tennessee Attorney General’s office, said in an email to The Tennessean that “the state plans to file an appeal to Wednesday’s decision.” 

“We are disappointed in the ruling that comes a full year after the trial and five years after the law was passed by our elected representatives. We are evaluating next steps, including appealing the order.” 

Brian Harris, president of Tennessee Right to Life, said, “Not only is this decision a slap at Tennessee’s abortion-vulnerable women, it is an affront to Tennessee’s voters who passed a 2014 constitutional amendment in which allowing a short waiting period was a key factor.” He added, “Our organization remains committed to seeing a similar statute drafted and enforced during the next legislative session.”

Judge Friedman concluded that the waiting period “provides no appreciable benefit to fetal life or women’s mental and emotional health. On the contrary…..place women’s physical and psychological health and well-being at risk.”

But, as Tennessee Right to Life noted in a statement, during the 2019 court hearings, they heard Dr. Priscilla Coleman, Bowling Green State University Professor of Human Development and Family Studies, say that 25 – 40% of women seeking abortion arrive at the abortion facility undecided and through her research has found that information and time benefit women.

Will Brewer, legal counsel and legislative liaison for Tennessee Right to Life, said, “This waiting period law was drafted in consultation with nationally renowned legal scholars in order to mirror similar laws across the country. We have no doubt that the Sixth Circuit will swiftly overturn Judge Friedman’s ruling.”  

Although you’d never know it by newspaper accounts, the waiting period is strongly supported by Tennesseans. “[A] recent poll by Vanderbilt University showed Tennessee voters largely support the two-day waiting period, with 60 percent in favor of the measure, while 28 percent oppose it,” Anita Wadhwani reported in 2015 for  The Tennessean.

During the 2019 oral arguments Wadhwani first explained the plaintiffs’ case:

“Here the burdens imposed are significant,” said Autumn Katz, an attorney for the Center for Reproductive Rights, which is challenging Tennessee’s law. “The act impacts every woman seeking an abortion.”

“It is clear the benefits, if any, are overwhelmingly outweighed by the significant burdens,” Katz said. 

Not so, said  Alex Rieger, an assistant attorney general, who

argued Tennessee has two key interests in upholding the waiting period law: protecting fetal life and providing women time to form “mental clarity” about their decision. 

“The decision to have an abortion is not a revocable one,” he said. “There is a benefit to being sure.”

Waiting periods are not new to Tennessee, said Rieger. From 1978 to 2000, Tennessee had a mandatory 48-hour abortion waiting period that was later overturned by the state Supreme Court. 

“Tennessee’s waiting period is not a substantial obstacle to a woman seeking an abortion,” Rieger said, citing state Department of Health data showing the number of abortions in Tennessee increased in 2016 – after the 2015 measure took effect.