CINCINNATI (CN) — A divided en banc Sixth Circuit on Thursday ruled 9-7 that Tennessee's two-day waiting period for abortions is constitutional, in part because the number of abortions in the state has not drastically decreased since the law was put in place.
The case has been extensively litigated over the past five years, and was most recently argued before the full appeals court in June.
At issue is a 48-hour waiting period first put into law in 1978, then enjoined by a federal judge in 1981.
Following the landmark 1992 U.S. Supreme Court decision in Planned Parenthood v. Casey, in which Pennsylvania's 24-hour waiting period was upheld as constitutional, Tennessee's waiting period was put back into place after voters amended the state's constitution to exclude the right to an abortion.
The Tennessee Legislature finally implemented the law in 2015, and state officials were promptly sued by several abortion providers, including the Bristol Regional Women's Center and Planned Parenthood.
A bench trial was held four years after the 2015 lawsuit, and Senior U.S. District Judge Bernard Friedman struck down the law as facially unconstitutional last October.
The state appealed and was granted an initial hearing before the full Sixth Circuit. It argued at the June hearing that its interests in protecting the lives of unborn children and ensuring women are fully informed before having abortions outweigh any burdens imposed by the law.
U.S. Circuit Judge Amul Thapar, an appointee of Donald Trump, wrote the majority opinion of a staunchly divided court that ultimately reversed the lower court and upheld the law.
Thapar cited Casey and said the Tennessee law is a reasonable attempt by the state to "ensure that a woman's consent is 'informed and deliberate.'"
He then moved to an analysis of the evidence presented before the federal court to determine if the law constitutes a substantial obstacle to a "large fraction" of women seeking abortions.
Thapar admitted the "large fraction" concept is rather nebulous, but remained steadfast in his determination that "wherever the precise line is drawn, Tennessee's waiting-period law is not a substantial obstacle to abortion."
"In this case, as in others," he wrote, "'the hardships of which plaintiffs complain are generally no different that those the court in Casey held did not amount to an undue burden.'"
He added, "True, there are increased costs, delays, and logistical challenges associated with attending two appointments. And as the district court explained, those problems are especially severe for women with low incomes and in precarious social situations. But those burdens mirror the burdens held insufficient in Casey."
Thapar cited statistical evidence over a five-year period that the number of abortions in Tennessee dropped by only 9% after the law was put into effect in 2015.
"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," he said.
The majority rejected the abortion providers' argument that the waiting period forces more women to have riskier surgical procedures -- instead of medication abortions -- and pointed out the plaintiffs' expert testified at trial that "surgical abortion at all times remains very safe."
In his conclusion, Thapar reiterated the abortion providers' failure to provide concrete evidence ultimately doomed their claims regarding the law's application to victims of rape or those who were pushed past the gestational cutoff date for an abortion.
"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," he said. "None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period. And none of the witnesses could point to specific women who, due to experiences of rape, incest, or abuse, found the waiting period traumatizing or were prevented from obtaining an abortion."
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