Appeals court says Tennessee can enforce its 48 hour waiting period while legal challenges against 2015 law proceed

By Dave Andrusko

On Friday, the 6th Circuit U.S. Court of Appeals agreed with the state of Tennessee and said the state’s 48 hour waiting period would remain in effect while Attorney General Herbert Slattery appeals Senior federal District Judge Bernard A. Friedman’s 2020 decision striking down the requirement of the 2015 law.

Twenty-eight states require a reflection period of at least 24 hours.

In his decision, Judge Friedman maintained the law “burdens the majority of abortion patients with significant, and often insurmountable, logistical and financial hurdles” because it requires two visits to the abortion clinic

A divided three-judge panel of the Sixth Circuit declined to stay Judge Friedman’s decision, and Tennessee asked the full appellate court to hear the case. The court did, and last Friday it concurred with Tennessee that the state could enforce its law while legal proceedings continue.

Unmentioned in most news stories is that the law was in effect for five years—from 2015 until 2020—until  Judge Friedman gutted the law last October following a four day bench trial.

As we reported at the time of the appeals court panel’s split 2-1 decision, Judge Amul Thapar provided a brilliant dissent. In addition, on March 3, a coalition of 21 states filed an amicus brief in support of the law. Kentucky’s Attorney General Daniel Cameron, who had joined Louisiana Attorney General Jeff Landry in leading the charge, explained what the 18-page friend-of-the-court brief argued.

“More than half of the states in the country have waiting periods before an abortion, and the Sixth Circuit’s decision has the potential to throw these laws into disarray,” said Attorney General Cameron.  “We cannot let that happen, and we co-led this brief to support Tennessee and also to protect the Commonwealth’s laws.”

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