Tennessee appeals judge’s decision striking down state’s 48 hour waiting period

By Dave Andrusko

Last month we reported on a decision by Senior United States District Judge Bernard A. Friedman to permanently enjoined enforcement of Tennessee’s 48-hour waiting period, which has been in effect since 2015.

On Wednesday, state Attorney General Herbert Slatery filed a motion in the U.S. District Court in Nashville asking that the law remain in effect while state appeals the decision. The law requires that a woman wait 48 hours after their initial doctor’s appointment to have an abortion. Critics argue this requires two visits to the abortion clinic and is burdensome.

The motion “argues that although the state lost at the federal district court level [Judge Friedman], it is likely to win at the 6th U.S. Circuit Court of Appeals because the waiting period law does not violate the constitutional right to an abortion,” the Associated Press reported. “Also, the motion says that keeping the law in place during the appeals process will not harm abortion providers, who have been complying with the law for the entire five years it took to get a ruling in federal court.”

Judge Friedman “ruled last month that Tennessee’s waiting period law serves no legitimate purpose while placing a substantial burden on women who seek abortions in Tennessee,” the AP’s Travis Loller reported. 

When Judge Friedman handed down his decision on October 14, Brian Harris, president of Tennessee Right to Life, responded, saying, “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.”

Will Brewer, legal counsel and legislative liaison for Tennessee Right to Life, also said at the time of the decision, “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.

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.

A motion filed by state Attorney General Herbert Slatery in the U.S. District Court in Nashville on Wednesday asks Friedman to keep the law in place for now. It argues that although the state lost at the federal district court level, it is likely to win at the 6th U.S. Circuit Court of Appeals because the waiting period law does not violate the constitutional right to an abortion.

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.