Two-Day Waiting Period for Abortion Struck Down in Tennessee

(AP Photo/Rick Bowmer)

NASHVILLE, Tenn. (CN) — Calling it “gratuitously demeaning,” a federal judge ruled Wednesday a Tennessee law that required women to wait 48 hours before obtaining an abortion is unconstitutional and enjoined the state from enforcing it.

Senior U.S. District Judge Bernard Friedman – a Reagan appointee whose previous rulings include striking down the federal government’s ban on female genital mutilation and nixing a Michigan ban on same-sex marriage in 2014 – said in his 136-page ruling the state failed to prove that the law furthered its interests in protecting fetal life and helping women be sure they wanted to go through with the procedure.

“Defendants’ suggestion that women are overly emotional and must be required to cool off or calm down before having a medical procedure they have decided they want to have, and that they are constitutionally entitled to have, is highly insulting and paternalistic – and all the more so given that no such waiting periods apply to men,” wrote Friedman, a visiting judge from the Eastern District of Michigan sitting in the Middle District of Tennessee.

About half of U.S. states require women seeking abortions to undergo a wait time before the procedure, according to the Guttmacher Institute, a nonpartisan organization that researches reproductive health policy and was once affiliated with Planned Parenthood.

Tennessee argued that because the U.S. Supreme Court upheld Pennsylvania’s 24-hour waiting period in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, the state law passed in 2015 should stand. It is in the Casey decision where the high court said abortion restrictions should not place an undue burden on the procedure.

“The present case has what was lacking in Casey: a fully developed record that clearly shows the extent to which the mandatory waiting period places a substantial obstacle in the way of women who seek an abortion,” Friedman wrote. “Plaintiffs in the present case have proven with overwhelming evidence that the 48-hour waiting period (in addition to serving no legitimate purpose) severely burdens the majority of women seeking an abortion.” (Parentheses in original.)

Abortion providers in Tennessee had challenged the law, and attorneys representing the group included those from the Center for Reproductive Rights.

During the bench trial held September 2019, the Tennessee abortion providers opened their records and shared data about abortions performed in the state. For instance, Planned Parenthood Greater Memphis Region performed 729 abortion-related ultrasounds between July 1, 2015 and Jan. 31, 2018, where the woman did not return to the clinic for an abortion. 

Friedman said the reason for the missed second appointments were less likely that the women had changed their minds but rather low-income women were more likely to be unable to pay to travel twice to an abortion provider, arrange child care and manage other logistics to have the time-sensitive procedure done.

Rebecca Terrell, executive director for CHOICES Memphis Center for Reproductive Health, said in a statement, “We are so glad that we can now schedule our patients for care in a manner that centers their needs, not the political vagaries of our state government.”

Tennessee Attorney General spokesperson Samantha Fisher said the office was disappointed in the decision and it is evaluating what it will do next, including an appeal.

Meanwhile, Will Brewer, Tennessee Right to Life legal counsel, said in a statement the Tennessee law was written to align with similar waiting-period laws in the nation.

“We have no doubt that the Sixth Circuit will swiftly overturn Judge Friedman’s ruling,” Brewer said.

DANIEL JACKSON

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