Appeals court hears arguments over Tennessee’s 48 hour waiting period

By Dave Andrusko 

One of the many pro-life laws passed by the state of Tennessee is a 48 hour period of reflection between the time a woman goes to the abortion clinic and (assuming she decides to go ahead) returns. 

Passed in 2015,  Tennessee Code 39-15-202 was in effect until October 2020 when Middle Tennessee District Judge Bernard A. Friedman ruled that the law was unconstitutional. After a four day bench trial, in a 136 page opinion, 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

Yesterday, in the case of Bristol Regional Women’s Center v. Slatery, the full [en banc] 6th U.S. Circuit Court of Appeals heard arguments on the law’s constitutionality. Wednesday’s hearing followed a long series of decisions, beginning with Judge Friedman’s. Subsequently, a divided three-judge panel of the 6th Circuit declined to stay Judge Friedman’s decision, and Tennessee asked the full appellate court to hear the case. The court did, and in April 2021, concurred with the state that Tennessee could enforce its law while legal proceedings continue.

According to accounts written by The Tennessean’s Mariah Timms and Court House News’ Kevin Koeninger, the justices “deeply” questioned both State’s attorney Sarah Campbell and the Center for Reproductive Rights’ Autumn Katz.  

Katz  argued that Casey v. Planned Parenthood “did not sanction all waiting period laws.” As elaborated in their brief

Whatever the analysis, the Supreme Court’s decision to uphold a 24- hour waiting period in Casey does not mean, as Defendants-Appellants would have it, that any such restriction—no matter how lengthy the delay, or how burdensome its effects—is per se reasonable.

In addition, according to Campbell and Koeninger, Katz maintained that “Some patients have been prevented altogether from having an abortion as a result of the delay law”; that the 48 hour waiting period constituted an “undue burden”; and that “there was a significant increase in abortions happening at later gestational stages.”                                               

In rebuttal to the latter point, Campbell responded (Koeninger wrote) “that only 170 out of more than 13,000 women who sought a medication abortion over a two-year period were pushed out of the timing window because of the waiting period. Campbell pointed out there was no evidence in the record as to whether those 170 women eventually obtained a surgical abortion.”

Campbell also told the court that one of the state’s interests advanced by the 48 hour waiting period “may persuade some woman who had planned to have an abortion, not to. Another interest is making sure that women who are making the decision to abort do so based on complete information and within adequate time to reflect on that decision.”

Moreover, as to the allegation that the law effectively banned many women from having abortions, Campbell responded, “The critical question is whether women have access to and are able to obtain abortions,” adding, “We would say that under the governing legal standard that would not present a substantial obstacle to abortion.” 

In addition, as stated in its brief, the state pointed out

Tennessee is now the only State that cannot enforce its waiting-period law because of a federal-court injunction. Fourteen other States have similar laws that impose waiting periods of 18 to 72 hours and generally require two trips to an abortion provider. Although some of these laws have been challenged, the State is unaware of any successful federal constitutional challenge to a waiting-period law that has survived federal appellate review since Casey was decided. Federal courts have instead consistently upheld those laws. This Court should do the same.

Currently, there is no timetable for when the 6th Circuit will hand down its decision.