CINCINNATI (CN) --- In arguments before the entire Sixth Circuit on Wednesday, Tennessee cited U.S. Supreme Court precedent and claimed its mandatory waiting period for abortions should not have been struck down by a federal judge.
Passed in 2015, Tennessee Code 39-15-202 requires women seeking abortions to wait 48 hours after a first clinic visit before having the procedure, as part of the state's effort to "ensure consent for an abortion is truly informed consent," given "freely and without coercion," according to the statute.
A federal lawsuit followed closely on its heels, filed by the Bristol Regional Women's Center PC, among others.
The law in question is based on a similar waiting period in Pennsylvania, upheld as constitutional by the U.S. Supreme Court in the landmark 1992 abortion case Planned Parenthood v. Casey.
The waiting period upheld in Casey was just 24 hours, and the Tennessee Legislature allowed for its two-day period to be cut in half if the original law was enjoined.
Following a four-day bench trial, however, a federal judge struck the law down entirely in October 2020.
In a thorough, 136-page opinion that summarized and interpreted the testimony and evidence presented by both parties, U.S. District Judge Bernard Friedman, a Ronald Reagan appointee and visiting judge sitting in the Middle District of Tennessee, ruled the state "failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee."
Tennessee appealed, and in an unusual turn of events, the Sixth Circuit agreed to hear initial arguments in the case before the full court.
In its brief to the Cincinnati-based appeals court, Tennessee relied heavily on the Casey decision, and called any differences between its own law and the one upheld in Pennsylvania "illusory or immaterial."
The state claimed the number of abortions performed inside its borders "decreased only slightly" after the law went into effect, and argued the drop was mirrored in statistics for abortions across the country.
"Tennessee is now the only state that cannot enforce its waiting-period law because of a federal-court injunction," the brief states. "Fourteen other states have similar laws that impose waiting periods of 18 to 72 hours and generally require two trips to an abortion provider."
It continues, "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."
The abortion providers argued in their brief the undue burden analysis established in Casey is "context-specific and record-dependent," which forecloses Tennessee's argument the 1992 decision is binding precedent. They claim the state is wrong to suggest that "any mandatory delay law must be constitutional."
"The trial record does not matter to defendant-appellants; indeed, they dismiss the record evidence as 'irrelevant,'" the brief states. "But the district court rigorously reviewed that record and carefully explained how plaintiffs-appellees made a clear showing of an undue burden. In other words, the district court faithfully followed the Supreme Court's instruction to consider the evidence before it."
On Wednesday, each attorney was given a five-minute introduction period, after which members of the Sixth Circuit began a question-and-answer session.
Sarah Campbell, Tennessee's associate solicitor general, argued on behalf of the state, accusing the lower court of ignoring Casey because of the factual record developed at trial.
"This should be an easy case," Campbell said, pointing to the fact that the waiting period does not categorically prevent a woman in Tennessee from getting an abortion.
Several judges, including Chief U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, asked Campbell about the number of abortion providers in Tennessee, as compared to the number in Pennsylvania at the time Casey was decided.
The attorney responded there is a "lack of clarity" in the trial court's record because it compared the number of clinics in Tennessee with the number of providers in Pennsylvania, which she said were entirely different categories. She told the court every woman in Tennessee is within a two-hour drive of an abortion clinic, while nearly 40% of women in Pennsylvania were more than 50 miles from a provider at the time Casey was decided.
U.S. Circuit Judge Bernice Donald, a Barack Obama appointee, asked for clarification regarding the state interests being advanced by the waiting period.
"The first interest is protecting unborn life," Campbell said, while also "acknowledging that this is a decision with gravity."
Attorney Autumn Katz argued on behalf of the abortion providers, and emphasized the Casey decision dealt solely with the case before that court.
"Casey did not sanction all waiting period laws," she said, "and certainly not the extreme delays" caused by the Tennessee law.
Katz said wait times for women in Tennessee have nearly tripled since the law was passed, which has required some women to wait a month before getting a surgical abortion, while also preventing some women from obtaining medication abortions.
The attorney devoted a portion of her time to the financial difficulties faced by women seeking abortions, saying the vast majority of women seeking the procedure in Tennessee are low-income.
"The financial and logistical barriers [to these women] are either insurmountable or surmounted only with great difficulty," Katz said.
U.S. Circuit Judge Richard Griffin, an appointee of George W. Bush, asked about the record evidence regarding a drop in the number of abortions since the passage of law.
Katz responded that while the total number of abortions may have dropped in recent years, the district court noted "there was a significant increase in abortions happening at later gestational stages," a decisive indicator of the law's effect.
In her rebuttal, the state's attorney clarified that only 170 out of more than 13,000 women who sought a medication abortion over a two-year period were pushed out of the timing window because of the waiting period. Campbell pointed out there was no evidence in the record as to whether those 170 women eventually obtained a surgical abortion.
The hearing was the first opportunity for Sutton to oversee the entire court, following his appointment to chief judge on May 1.
No timetable has been set for the court's decision.
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