Judge will not allow Tennessee to enforce 48 hour waiting period while state challenges his decision enjoining the law

By Dave Andrusko

While you can always hope, alas,  there was not much reason to believe Senior United States District Judge Bernard A. Friedman would agree to put his order enjoining enforcement of Tennessee’s 48-hour waiting period on hold while the state appeals to the 6th U.S. Circuit Court of Appeals. And, sure enough, on Monday Judge Friedman brusquely brushed aside Attorney General Herbert Slatery’s request.

But, as is always the case, pro-lifers are undeterred. They will continue to persevere, knowing that today’s temporary setback can be tomorrow’s breakthrough, in this case at the 6th Circuit.

Critics assailed the law that requires a woman wait 48 hours to have an abortion after her initial in-person appointment, arguing (what else?) that the two-trip requirement is “burdensome.”

In his motion, Slatery argued that abortion providers have been complying with the law for the entire five years it took to get a ruling into federal court, so keeping the law in place during the appeals process will not harm them.

According to Travis Loller of the Associated Press, Attorney General Slatery’s motion, filed last month in the U.S. District Court in Nashville,

argued that Friedman should have weighed the benefits of the restriction against the burdens it places on patients.

In his opinion Monday, Friedman stated that the outcome would have been the same. “With or without such a balancing test, the Tennessee statute constitutes a ‘substantial obstacle to a woman seeking an abortion’ and, thus, an undue burden,” he wrote.

When Judge Friedman handed down his decision to enjoin on October 14, 2020, Brian Harris, president of Tennessee Right to Life, responded, by 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.”