By Dave Andrusko
At last! After a six year tug of war, Tennessee’s 48 hour waiting period has withstood all legal challenges and will remain in effect!
Attorney General Herbert H. Slatery on Friday said the timeline to challenge that decision to the U.S. Supreme Court ran out this week.
“This law was on the books for five years before the district court enjoined it,” said Attorney General Herbert Slatery. “The Sixth Circuit took the unusual step of having the full court review the district court decision and that of its own panel.”
He was referring to the October 2020 decision by District Judge Bernard A. Friedman which resurrected the dormant lawsuit. It had been in effect for five years.
As NRL News Today wrote at the time, 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.
But as the appellate court noted, during that 2015-2020 time period, abortion rates remained fairly steady.
“It is one thing to predict that the sky will fall tomorrow,” the ruling states. “It’s quite another thing to maintain that the sky fell five years ago for women seeking abortions when the numbers tell us otherwise.” (For more on this, see below.)
As we reported previously, in its brief, the state of Tennessee highlighted that
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.
In the appeals court’s Bristol Regional Women’s Center v. Slatery decision, Judge Thapar, writing for the majority, said
“None of the plaintiffs’ witnesses could name specific women who could not get an abortion because the waiting period pushed them past the cutoff date. None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period.”
He added,
“Before making life’s big decisions, it is often wise to take time to reflect. The people of Tennessee believed that having an abortion was one of those decisions. So they passed a law requiring a waiting period of 48 hours. Although the Supreme Court upheld a similar 24-hour waiting period in Planned Parenthood v. Casey, the district court said that Tennessee’s waiting period violates a woman’s right to have an abortion. We disagree and reverse.”
Attorney General Slatery concluded “We are grateful that the Court recognized the validity of a law passed by the people’s representatives and did not substitute its own judgment for the policy decision made by the legislature and the Governor.”