Supreme Court Ducks Emergency Appeal in Tennessee Abortion Case

State’s 48-hour waiting period is reinstated amid ongoing legal battle

WASHINGTON, DC – JANUARY 19: Pro-life activists try to block the sign of a pro-choice activist during the 2018 March for Life January 19, 2018 in Washington, DC. Activists gathered in the nation’s capital for the annual event to protest the anniversary of the Supreme Court Roe v. Wade ruling that legalized abortion in 1973. (Photo by Alex Wong/Getty Images)

Kevin Daley • April 23, 2021 7:30 pm

A federal appeals court on Friday reinstated Tennessee’s 48-hour waiting period for abortions, which a federal trial judge said was unconstitutional.

The Sixth U.S. Circuit Court of Appeals issued the order, a temporary stay, which allows the waiting period to take effect while the state fights a trial court ruling that sided with abortion providers. The order also means that the Supreme Court will not get involved at this stage, a step the state urged the justices to take earlier this month.

Tension is mounting around abortion cases at the High Court. The justices are weighing an appeal from Mississippi, which wants to enforce a ban on abortions after 15 weeks. After months of internal deliberation, the Court has yet to announce whether it will hear the case. Pro-choice and pro-life advocates alike see the case as a threat to Roe v. Wade. The Sixth Circuit’s decision on Friday spares the High Court a second, more pressing abortion appeal.

Tennessee’s waiting period requires a patient to consult with a physician about abortion and its alternatives at least 48 hours before the procedure. Providers must relay information about the gestational age of the child, the health risks of abortion and childbirth, and support services for women who choose to carry the child to term. There is an exception for medical emergencies.

U.S. district judge Bernard Friedman found Tennessee’s waiting period law unconstitutional in October 2020, five years after it took effect. In a 136-page opinion, Friedman said the law imposes weeks-long delays and is especially hard on low-income women, who lack the time and resources to make multiple clinic visits.

The Supreme Court upheld a waiting period law in a 1992 case, Planned Parenthood v. Casey. No appeals court has successfully struck down a waiting period law since Casey, and Friedman is the first federal trial judge to do so since 1992. Nevertheless, Friedman said Friday’s case was different from Casey because the facts on the ground clearly showed that the waiting period heavily impeded access to abortion.

“Nothing about the record in this case gave the district court a license to ignore Casey,” lawyers for Tennessee countered in legal papers. “To the contrary, the evidence conclusively established that Tennessee’s waiting period did not prevent a significant number of women from obtaining an abortion.”

In the five years that the 48-hour waiting period was in force, the number of abortions in the state declined only slightly, in line with national trends. There were about 12,000 abortions in Tennessee in 2017, the last year for which data are available, according to lawyers for the state and the pro-choice Guttmacher Institute. Eight clinics perform abortions in the state.

A divided three-judge panel of the Sixth U.S. Circuit Court of Appeals denied Tennessee’s request to put Friedman’s decision on hold while litigation continues.

In dissent, Judge Amul Thapar accused the panel majority of ignoring the precedent of the Supreme Court and the Sixth Circuit.

“Since Casey, no federal appellate court has successfully struck down an abortion waiting period. Why? Because the Supreme Court says that waiting periods are constitutional,” Thapar wrote.

“Given the weighty interests involved in this case, the majority’s failure to issue a stay merits immediate correction either by our court or a higher one,” he added.

In turn, Tennessee asked the “en banc” Sixth Circuit to pause Friedman’s decision. “En banc” refers to a rarely used procedure in which every judge on an appeals court, rather than a panel of three, considers a particular case.

The en banc Sixth Circuit did not act on that request for several weeks, prompting the state’s emergency appeal to the Supreme Court on April 5. Friday’s decision negates any need for High Court action at this stage.

Six judges dissented from the en banc court’s order. Fourteen states have similar waiting period requirements.

The case is No. 20-6267, Bristol Regional Women’s Health Center v. Slatery.

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