NRL News

Tennessee asks Supreme Court for permission to enforce 48 hour waiting period while it appeals decision striking down the law

by | Apr 7, 2021

By Dave Andrusko

Demonstrating incredibly tenacity, Tennessee Attorney General Herbert Slattery filed an emergency request with the Supreme Court  Monday “asking the justices for permission to enforce a 48-hour waiting period for abortions while it appeals a federal district court’s ruling that declared the waiting period unconstitutional,” according to Amy Howe. “Characterizing the waiting period as ‘materially indistinguishable’ from one the Supreme Court upheld nearly 30 years ago in Planned Parenthood of Southeastern Pennsylvania v. Casey, Tennessee told the justices that although 14 other states have similar laws, it is ‘the only State in the Nation that cannot enforce its law because of a federal judicial decree.’”

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

As NRL News Today reported last fall, U.S. District Judge Bernard Friedman struck down the requirement, maintaining it  “burdens the majority of abortion patients with significant, and often insurmountable, logistical and financial hurdles” because it requires two visits to the clinic

The state appealed Judge Friedman’s decision, but a divided 6th Circuit Court of Appeals panel “refused to put the ruling on hold while the appeal proceeds. That refusal led to Monday’s filing, which asks the justices to intervene and reinstate the waiting period while the litigation continues in the 6th Circuit,” Howe reported.

In his filing in Slatery v. Bristol Regional Women’s Center, Slattery’s office argued

Nothing about the record in this case gave the district court a license to ignore Casey. To the contrary, the evidence conclusively established that Tennessee’s waiting period did not “prevent a significant number of women from obtaining an abortion.” During the years the waiting period was in effect, the number of annual abortions in Tennessee declined only slightly and remained above 10,000 per year. And no one has ever argued that this slight decline—which began years before the waiting period took effect and mirrors nationwide trends—is attributable to the waiting period.

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.”

Tennessee’s “request goes to Justice Brett Kavanaugh, who handles emergency requests from the geographic area that includes Tennessee,” according to Howe. “Kavanaugh can act on the request himself or, as is more likely, refer it to the full court.”

Categories: Judicial