NASHVILLE, Tenn. (CN) – Kenneth Goodman was talking fast, again.
Soon after Goodman took to the stand, the court reporter asked the director of the Florida Bioethics Network, to slow down as he rattled off some information. But this time it was something that attorney Steven Hart, with the Tennessee Attorney General Office, asked in his cross examination of the expert witness that set off Goodman.
Goodman, with a short and sculpted grey beard, sat on the witness stand in the cold federal courtroom in Downtown Nashville surrounded by thick, three-ring binders full of exhibits. It was day one of a bench trial where abortion clinics in Tennessee opened up their records in an attempt to challenge Tennessee’s requirement that women seeking an abortion visit face-to-face with an abortion provider and then wait at least a full two days before obtaining an abortion.
The abortion providers wanted to convince Senior U.S. District Judge Bernard Friedman that the 48-hour delay was unconstitutional because it created too great a burden for their clients.
While listening to the arguments, Friedman wore his black judge robes open, showing white dress shirt and red-striped tie underneath.
Hart narrowed in on a number teased out of the information Planned Parenthood of Tennessee and Northern Mississippi disclosed: 2,365 women in the three years since Tennessee’s law took effect showed up at a Planned Parenthood clinic for the first visit to obtain an abortion, scheduled a second to have the procedure done but then never showed.
“I don’t know why they didn’t return,” Goodman said. All the parties, Goodman said picking up steam, were all speculating on “slender data.”
And then he stopped himself, apologized to the court reporter and continued at a slower pace.
Hart pointed out that it was Planned Parenthood’s data. But, Goodman answered, the abortion provider could not simply call up past patients of their clinics and ask why they never followed through with their abortion at their facilities. That would “constitute human subject research,” Goodman said, and it would need to be ethically vetted and get approval from a review board.
It was one moment out of the first day of trial that illustrated the question: How does one measure the effect of a law on abortion access?
Before the trial began, Friedman excluded from the pile of evidence a working paper published about two weeks before examining the effects of Tennessee’s 48-hour delay law. The defense did not have enough time to properly vet the paper and it was not yet peer reviewed.
“I think it’s not admissible because it doesn’t comply with the requirements,” Friedman explained.
The story this data told was buried in records containing sensitive medical information. At one point, the Attorney General’s office projected a spreadsheet on the screen hanging on the left wall of the courtroom and the attorneys for the abortion clinics objected. While names of the patients were blacked out, the exact dates and medical record numbers were also protected by privacy rules.
The state argued the 48-hour delay law fell within the bounds of a proper abortion restriction. Tennessee had a 48-hour waiting period from 1978 to 2000, assistant attorney general Alex Rieger argued in his opening statement, which was struck down when the Tennessee Supreme Court examined the law through strict scrutiny and said the Tennessee Constitution contained a right to privacy.
Tennesseans revised their constitution in 2015 to say it doesn’t support the right to an abortion and the 48-hour delay law made its way back into the statutes.
The data the abortion clinics provided, Rieger said in his opening argument, “tell an incomplete story” because it doesn’t explain why some women never show up for their scheduled abortions. Rather, Rieger said the state has an interest in giving women an opportunity to make a different choice in the irreversible procedure.
Dr. Sarah Wallet, former Chief Medical Officer for Planned Parenthood of Tennessee and North Mississippi said little changed when it came to how Planned Parenthood obtains informed consent from women seeking abortions because of the 48-hour law. It added another form to their packet of information they go over with the woman.
“In my experience, most women are very confident when they come in to have an abortion,” Wallet said. “They always have the option not to proceed, whether or not there’s a delay law.”
But what did change was the cost. In the month after the law went into effect, Planned Parenthood increased its prices for a surgical abortion performed up to the 11th week and sixth day of pregnancy from $400 to $525. Wallet also testified that continuing a pregnancy for a woman that, say, has high blood pressure could lead to complications such as stroke and kidney damage.
Rebecca Terrell, executive director of CHOICES Memphis Center for Reproductive Health, admitted the small nonprofit had to “cobble together” data for the lawsuit, in part because it had been using a free electronic health record software.
About 80% of CHOICES’ patients qualify for financial assistance to obtain an abortion through several abortion funds because they meet the criteria of living at 110% above the poverty line.
While it gave the best info it could, Terrell said, CHOICES doesn’t track why women don’t keep their second appointment because it’s “not related to their medical care.” The women might not have been able to get transportation, or they miscarried or they went to a different provider, Terrell said.
The trial is expected to run until the end of the week.