Appellate judges uphold Tennessee’s 48-hour waiting period

Ruling is a victory for pro-life supporters and Lee administration that appealed a lower federal court decision

By Matt Hadro
Catholic News Agency
and The East Tennessee Catholic

A full panel of the U.S. 6th Circuit Court of Appeals on Aug. 5 ruled in favor of Tennessee’s mandatory 48-hour waiting period for abortions.

“Every woman should have the information she needs to make the healthiest choice for everyone involved in a pregnancy,” said Denise Harle, senior counsel with Alliance Defending Freedom, which had filed a friend-of-the-court brief in favor of the law.

“Many women resort to abortion because they feel it is their only choice and then regret the decision for years to come,” Ms. Harle said. “Tennessee’s law is a common-sense, compassionate, and constitutional statute that protects women, and the 6th Circuit reached the right result in upholding it.”

Tennessee’s mandatory 48-hour waiting period for women seeking an abortion went into effect in 2015. In October 2020, however, U.S. District Judge Bernard Friedman ruled the law was unconstitutional, the first time a federal court had struck down a state waiting period for abortion. In December, Judge Friedman refused to keep the law in place after Tennessee’s attorney general appealed. The state then appealed the case to the circuit court.

On Aug. 5, the full 6th Circuit court ruled 10-7 in favor of the law in Bristol Regional Women’s Center v. Slatery.

“Before making life’s big decisions, it is often wise to take time to reflect. The people of Tennessee believed that having an abortion was one of those decisions. So they passed a law requiring a waiting period of 48 hours,” wrote Judge Amul Thapar, who authored the majority opinion in the case.

“Although the Supreme Court upheld a similar 24-hour waiting period in Planned Parenthood v. Casey, the district court said that Tennessee’s waiting period violates a woman’s right to have an abortion. We disagree and reverse,” Judge Thapar wrote.

Tennessee’s law required abortionists to inform a woman during her first appointment “that numerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child” if she chose not to have the abortion.

Barring a medical emergency, a patient was then required to wait 48 hours before the second appointment and proceeding with the abortion.

According to the pro-abortion Guttmacher Institute, 33 states require that women receive counseling before having an abortion, as of July 1. Of these states, 26 require a waiting period before an abortion, “most often 24 hours.”

Stacy Dunn, president of Tennessee Right to Life and director of the Knox County TRL chapter, welcomed the 6th Circuit Court’s ruling, saying it will save lives.

“The 6th Circuit Court of Appeals ruled to reverse the federal district court and uphold Tennessee’s 48-hour waiting period. This ruling means that the waiting period will remain law and in effect in Tennessee. This waiting-period law was the first piece of legislation for which Tennessee Right to Life advocated after the passage of Amendment 1 in 2014. It has proven effective in allowing women to take the time they need to thoughtfully and prayerfully consider the graphic and emotionally damaging effects of an abortion,” Mrs. Dunn said.

She recalled that immediately after the waiting-period bill’s passage in 2015, Planned Parenthood and the other abortion facilities in Tennessee challenged the law in federal court. With no court-ordered injunction against the law, it remained in effect until 2019, when Judge Friedman ruled it unconstitutional and placed an injunction on its enforcement.

Tennessee Attorney General Herb Slatery appealed Judge Friedman’s decision and asked the 6th Circuit to allow the law to be in force while awaiting court action. A three-member panel of the appeals court upheld the lower court decision and refused to lift the injunction. Mr. Slatery then asked for and received a full-panel review of the case.

The Aug. 5 decision by the full 6th Circuit Court reversed the lower court ruling as well as the three-member panel decision, finding that Tennessee’s 48-hour waiting period is constitutional because it does not create an undue burden for a woman.

“The duly elected members of the Tennessee General Assembly have been vindicated by this decision, but unborn children and their mothers are the real winners,” Mrs. Dunn said. “Tennessee Right to Life is grateful for this decision and for all who made it possible: Tennessee pro-life voters, members of the General Assembly, Attorney General Slatery, and the members of the 6th Circuit Court of Appeals, who affirmed the voice of Tennessee voters in a strongly written majority opinion.”

Mrs. Dunn noted that since the release of the 6th Circuit decision, there are some who believe that the opinion might be used in the upcoming Mississippi case before the Supreme Court in which Roe v. Wade may be reconsidered.

“We have felt all along that this was a common-sense law that gave women time for thoughtful consideration to choose life and reduce coerced abortions. We are glad that view was upheld by the 6th Circuit and are grateful for the strongly written majority opinion, which may help other states’ pro-life laws to be upheld in the future,” Mrs. Dunn said.

Will Brewer, legal counsel and director of government relations for Tennessee Right to Life, told The American Spectator that TRL is “thrilled” and “grateful” for the appellate decision.

“The courts have upheld the voices of Tennessee voters and lawmakers,” he said, emphasizing that every major poll has indicated that a majority of Tennesseans support pro-life legislation.

Mr. Brewer underscored Mrs. Dunn’s statement that Tennessee Right to Life was pivotal in getting Amendment 1 passed, which led to the 48-hour waiting period legislation. “We brought the (waiting period) language to the legislature, asked sponsors to sponsor it, and actively lobbied in favor of it.”

He pointed out — as the judge’s opinion also noted — that abortion in Tennessee has gone down 9 percent since the law was passed.

“We know from first-hand accounts that there have been a number of women who have gone for their initial consultation and have had to wait 48 hours, and because of that waiting period have decided to change their minds,” Mr. Brewer said. “On a reality level, that’s what’s playing out.”

TRL continues to actively support pro-life legislation in the Tennessee General Assembly, and earlier this year was successful in working to pass the Prenatal Life and Liberty Act to bring Tennessee civil law in line with its criminal code regarding unborn children.

Before this legislation, a wrongful-death claim for an unborn child was only allowed for a child past the point of viability, while the criminal code recognized an unborn child at any stage of development.

Now in Tennessee law, a person can be charged with fetal homicide for killing a woman and her unborn child at any stage of development and can be held liable for civil charges as well.

Additionally, this legislation prohibits lawsuits against doctors who fail to discover or disclose a child’s medical condition prior to the child’s birth. These “wrongful birth” and “wrongful life” lawsuits occur when the parents argue that abortion would have been preferable to birth and life and then seek monetary damages claiming the doctor’s breach of duty and omission.

Tennessee Right to Life also actively supported the Unborn Child Dignity Act, which requires the burial or cremation of all fetal remains in the state of Tennessee.

Mrs. Dunn called the path the 48-hour waiting period law has taken since its passage “a roller-coaster ride.” The same can be said for recent pro-life initiatives in other states.

A spokeswoman with Texas Right to Life said a federal appeals court ruling upholding the Texas Dismemberment Abortion Ban in August is a “long-awaited victory” Texans are celebrating.

“Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating,” said Kimberlyn Schwartz, the organization’s director of media and communication. “We’re grateful the judges recognized this horror.”

The Aug. 18 ruling from the full U.S. Court of Appeals for the 5th Circuit, based in New Orleans, upheld the state’s 2017 law, reversing previous court rulings that blocked it. It also reversed an earlier ruling by a three-judge panel of the 5th Circuit upholding a block on it. Texas Attorney General Ken Paxton appealed the panel’s ruling and the full court agreed to hear the case. A majority of the 14 judges who heard the case ruled in favor of Texas; three judges on the 5th Circuit recused themselves. The case is expected to be appealed to the Supreme Court. The law was first passed and signed into law in 2017 but has never gone into effect because of court challenges.

And in Indiana, a U.S. District Court judge placed a permanent injunction Aug. 10 on several Indiana pro-life laws, including those that required physicians to examine patients in person before performing abortions and said only physicians can administer first-trimester medication abortions.

News reports said several requirements in state law were deemed unconstitutional by Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana in a ruling in Whole Health Alliance v. Rokita.

Judge Barker did uphold some provisions, including the requirements that only physicians can provide first-trimester aspiration, or suction, abortions and that ultrasounds must be performed before an abortion. But reports said she blocked the state’s ban on the use of telemedicine as it regards abortion — whereby doctors use an online platform to prescribe abortion-inducing mifepristone and misoprostol.

She also put a stop on a requirement that second-trimester abortions must be performed in a hospital or ambulatory outpatient surgical center as well as blocked requirements that abortion providers provide state-backed information to patients on fetal pain, the beginning of life, and the mental health risks of abortion.

“It’s horrible,” Right to Life of Indianapolis president Marc Tuttle told The Criterion, the newspaper of the Indianapolis Archdiocese.

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