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6th Circuit Uphold Tennessee’s 48 hour waiting period

by | Aug 6, 2021

“This is great news for women and babies” says NRLC President Carol Tobias

By Dave Andrusko

On Thursday, when the full 6th U.S. Circuit Court of Appeals upheld Tennessee’s 48 hour waiting period, dissenting Judge Karen Nelson Moore bitterly complained “this case was dead on arrival.”

In one sense, Judge Moore is correct, just not in the way she meant. The Center for Reproductive Rights, which filed the lawsuit on behalf of Tennessee abortionists, failed to produce women who were harmed by having to wait 48 hours between the time they went to the abortion clinic and (assuming they decided to go ahead) they return.

“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,” Judge Amul Thapar wrote for the majority in Bristol Regional Women’s Center v. Slatery. “None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period.”

Moreover, importantly, the impact of the law was not argued in the abstract. The 2015 law was in effect until October 2020 when District Judge Bernard A. Friedman resurrected the dormant lawsuit.

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.

Here are highlights from Judge Thapar’s majority opinion.

1. “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.”

There are a number of issues the Supreme Court has addressed multiple times and in so doing continually upheld commonsense requirements. A waiting period has been litigated numerous times. For example, in the 1992 Casey decision, the justices concluded

The waiting period helps ensure that a woman’s decision to abort is a well-considered one, and rationally furthers the State’s legitimate interest in maternal health and in unborn life. It may delay, but does not prohibit, abortions. …

2. Judge Thapar’s majority opinion provided the background. In 2000, the Tennessee Supreme Court struck down a prior version of the 48 hour waiting period. In 2018 Tennessee voters approved a constitutional amendment, saying there is no right to abortion in the state constitution and then passed the 48-hour waiting period law again in 2019. Judge Thapar continued…

“A law regulating abortion is facially valid if it meets two requirements: (1) the law is ‘reasonably related to a legitimate state interest,’ and (2) the law does not place a ‘substantial obstacle’ in the path of a large fraction of women “seeking an abortion of a nonviable fetus.’”

Put in the affirmative, “a law regulating abortion is facially constitutional unless it places a substantial obstacle in the path of a large fraction of women seeking previability abortions.” (Emphasis added.)

The law readily passed the first requirement. As for the second, “Tennessee’s waiting-period law is not a substantial obstacle to abortion in a large fraction of cases,” Jude Thapar wrote. “Thus, the plaintiffs’ facial attack fails as a matter of law. Precedent compels this result” (to wit, the Casey decision). Then the key paragraph:

If there is any distinction between the record in Casey and ours, it is the statistical evidence that women in Tennessee continued to obtain abortions in large numbers after the waiting period took effect. In Casey’s pre-enforcement challenge, the courts relied on expert testimony predicting the effects of the law. But the Tennessee law had been on the books for five years by the time the plaintiffs sued. And five years of data tell us much more than an expert’s prediction of how the law will play out. It is one thing to predict that the sky will fall tomorrow. It’s quite another thing to maintain that the sky fell five years ago for women seeking abortions when the numbers tell us otherwise. …[W]hile abortions declined slightly (by about 9%), the law did not keep a large fraction of abortion seekers from obtaining the procedure. [Underlining added.]

“There is absolutely nothing wrong with providing women with information about abortion before they make that life-or-death decision, and then asking them to take some time – sometimes it’s 24 hours; in the case of Tennessee, it’s 48 hours – to think about what they have heard,” NRLC President Carol Tobias told One News Now. “This is great news for women and babies.”

As NRL News Today reported, Tennessee had support. On March 3, 2021, a coalition of 21 states filed an amicus brief in support of the request for the full 6th Circuit to hear the case.

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