Federal Appeals Court Hears Case Against Tennessee’s 48-Hour Waiting Period for Abortions

 

A federal appeals court held a hearing Wednesday in the ongoing case against Tennessee’s 48-hour waiting period for abortions. The U.S. Court of Appeals for the Sixth Circuit held an en banc hearing for the case, Bristol Regional Women’s Center v. Herbert Slatery III, et al.

The court heard arguments from Sarah Campbell, counsel on behalf of the attorney general’s office, and Autumn Katz, the counsel representing Bristol Regional Women’s Center.

Campbell argued that the state has three distinct interests: protecting unborn life, showing respect for unborn life, and protecting women’s health. Campbell said that the landmark case, Planned Parenthood v. Casey, confirmed that the state has a legitimate interest in persuading women to choose life over abortion.

In response to questions from the panel of judges, Campbell also asserted that no appellate court has ever struck down a waiting period law. She shared that the closest decision came from the U.S. District Court for the Seventh Circuit, which invalidated a law requiring ultrasounds at least 72 hours in advance of an abortion procedure. Campbell noted that the Supreme Court later vacated that decision, however, and the plaintiffs in the case agreed to dismiss their claim against the ultrasound requirement.

Several judges questioned the importance of length in a waiting period: whether there was a significant difference between 24 and 48 hours, or more. Another main point of concern for the panel was the undue burden standard in this case – whether a waiting period truly imposed a series of undue burdens.

As for the plaintiff’s arguments, Katz asserted that the state erred on two points. Katz said that Planned Parenthood v. Casey didn’t sanction all waiting periods, and said that Tennessee’s waiting period caused extreme delays. Katz added that the state ignores the fact that their waiting period is twice as long as Pennsylvania’s in Planned Parenthood v. Casey.

Katz also addressed the undue burden question in her arguments. She claimed that the requirement of taking two trips forced patients to handle the undue burden of lost wages, time off work, cost of care for existing children, and the cost and time spent driving.

As for her second point, Katz said that a delay law couldn’t be held as facially unconstitutional, but that such a requirement would be against Supreme Court precedent. She cited June Medical Services LLC v. Russo, in which the Supreme Court ruled that having hospital-admissions requirements for abortion doctors was unconstitutional – a similar case to the ruling against abortion delivery restrictions in Whole Women’s Health v. Hellerstedt, which Katz also cited.

When asked if she was arguing that there was a constitutional right to a particular type of abortion, Katz would only say that a woman’s inability to choose a type of abortion due to waiting periods would factor into undue burden. Katz cited undue burdens as those presented in a previous opinion by Middle Tennessee District Judge Bernard Friedman.

The hearing lasted about an hour and a half, adjourning just before 2:30 p.m. CST.

As The Tennessee Star reported at the end of April, the court vacated its prior opinion – allowing Tennessee to continue imposing its 48-hour waiting period for abortions until the court reaches a decision.

Slatery responded that the decision was recognition by the court that the waiting period was “likely constitutional” and therefore enforceable.

“The Supreme Court has recognized the authority of State governments to provide women considering abortion the opportunity to receive important information before a life-changing decision is made,” wrote Slatery. “Tennesseans, through their elected representatives, voted for this law and this Office will defend it.”

A written ruling on the appeal is pending.

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Corinne Murdock is a reporter at The Tennessee Star and the Star News Network. Follow her latest on Twitter, or email tips to [email protected].