Tennessee’s 48-hour waiting period for abortions will stand after a deadline lapsed for the Supreme Court to take up the case.
The state’s attorney general’s office noted Friday that the 90-day window has closed for plaintiffs to ask the nation’s top court to hear their challenge.
The law was passed in 2015 but struck down a year ago, when a federal judge ruled there’s no evidence it protects fetal life and that it creates a burden for people seeking abortions. But the Sixth Circuit Court of Appeals reinstated the wait in August, citing past court rulings in favor of waiting periods.
“We are grateful that the Court recognized the validity of a law passed by the people’s representatives and did not substitute its own judgment for the policy decision made by the legislature and the Governor,” Attorney General Herbert Slatery said in a prepared statement.
In response, the head of Planned Parenthood of Tennessee and North Mississippi did not address the appeals process but attacked the law itself.
“The forced delay requirement has nothing to do with patient health,” CEO Ashley Coffield said. “It exists simply to punish those who seek access to safe, legal abortion and disproportionately impacts Tennessee’s low-income communities and communities of color, who already face systemic barriers to quality health care.”
Waiting periods have long been a focal point in the fight over abortion in Tennessee. In 2000, the state Supreme Court ruled that the Tennessee Constitution gives people seeking abortions protections beyond Roe v. Wade, including not having to wait unnecessarily.
That decision triggered a 14-year battle to amend the state constitution to specifically strip out abortion rights. Tennessee voters approved the amendment in November 2014.
The following year, state lawmakers quickly approved a series of new restrictions, including a 48-hour wait. That triggered a long series of legal maneuvers, as lawyers for abortion providers and the state of Tennessee wrestled over the impact of the law and its constitutionality.
Tennessee pointed to the Supreme Court’s ruling in the 1992 Planned Parenthood v. Casey case. In that decision, the Supreme Court determined that a 24-hour waiting period passed in Pennsylvania was acceptable because it didn’t create an “undue burden.”
The state also argued that Tennessee’s 48-hour waiting period had led 2,365 patients to reconsider planned abortions. They arrived at that figure by counting the number of people who had a first appointment for an abortion, received informed consent but then did not return.
But in a 136-page ruling issued in October 2020, U.S. District Judge Bernard A. Friedman struck down Tennessee’s waiting period. He wrote that there’s no evidence they didn’t come back because they’d changed their minds and that “the most likely reason they do not appear for a second appointment is that they cannot overcome the financial and logistical barriers the 48-hour waiting period imposes.”
Friedman also noted that when Pennsylvania’s 24-hour waiting period was upheld in 1992, it had 81 abortion providers. When the challenge to Tennessee’s waiting period was heard, it had just eight — even though the two states are roughly the same size.
More: Judge Bernard A. Friedman’s ruling on Tennessee’s 48-hour waiting period for abortion
Supporters of abortion rights have blamed rising restrictions for driving off many providers. They also say the point of such laws are to stigmatize abortion, not protect lives.
“This law was created by politicians — not medical experts — to shame patients for their personal decisions,” Coffield said. “Well, we are not ashamed. Abortion is health care, and we at Planned Parenthood will fight for our right to control our own bodies because our patients deserve nothing less.”
But the Sixth Circuit reconsidered Friedman’s ruling. Judges on that court determined that Tennessee has a rational basis for the waiting period, in that it wants to “protect the lives of the unborn.” They said it was on providers to show that people seeking abortions were not coming back because of a financial hardship, and they noted one Planned Parenthood executive had testified that “it’s impossible to know why patients no-show.”
“A constitutionally valid law does not become unconstitutional just because it happens to be effective,” judges wrote. “Under our caselaw, states are free to enact laws that are rationally related to their legitimate interest in protecting unborn life provided those laws do not deter procurement of abortions in a manner tantamount to a pure ban. … It is possible that the law, which was intended in part to persuade expectant mothers to reconsider their decision to get an abortion, simply succeeded.”
On Air - 90.3 WPLN-FM