Tennessee keeps pushing abortion law that judges keep saying is illegal

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A federal judge just handed the state another loss.

Tennessee keeps trying — and failing — to impose an unconstitutional waiting period for people in the state who need abortions. A federal judge just handed the state another loss, ruling that he won't let the waiting period go into effect while the case makes its way through the courts. 

In October 2020, Judge Bernard Friedman struck down Tennessee's 48-hour waiting period, the first time a mandatory waiting period between the first consultation with a provider and the actual procedure was found unconstitutional. The judge did so after carefully considering testimony from doctors that people received extensive opportunities to provide informed consent to the procedure, and therefore the waiting period was unnecessary. The state was unable to explain how the waiting period enhanced the safety of someone seeking an abortion.

On the contrary, mandatory waiting periods have been shown to create a heavy burden on people seeking an abortion. Those waiting periods mean multiple visits to abortion providers and can dramatically increase the cost of an abortion. People have to take additional time off work and arrange for transportation and child care. Not many Tennessee counties have an abortion clinic, so people have to travel long distances twice or pay to stay multiple nights near a provider. 

In striking down the law, Friedman found that the waiting period did add expense and often create a delay longer than the mandated 48 hours, with an average gap of one to two weeks between the first and second appointments. 

After the October loss, the state immediately appealed to the United States Court of Appeals for the 6th Circuit. Lawyers for the state argued that although they had lost at the district court level, they would likely win in the appellate court, so Friedman should let the 48-hour waiting period stand while the case proceeded through the courts.

In making that request, the state argued that Friedman erred by not weighing all the benefits of the 48-hour waiting period against the burdens on people seeking an abortion. 

Friedman definitively refused.

He wrote in his order denying the defendant's motion for a stay that the waiting period "increases the risks of an otherwise safe medical procedure, heightens financial and logistical barriers to abortion access, erodes patient autonomy and the physician-patient relationship, and demeans women's decision-making capabilities, while providing no improvements to an already robust informed consent process."

The state had also argued that the waiting period might adversely affect some people, but not "a large fraction of the cases in which the regulation is relevant."

Friedman didn't buy that either. He reminded the state that the waiting period especially burdens people who have to travel long distances and poor people, and that there was a significant overlap between those two groups. 

Further, he wrote, those burdens are "often insurmountable," both logistically and financially. People who have to wait to get an abortion may not get one at all, thanks to delays and increased costs created by a waiting period. 

Doctors had testified before the Tennessee General Assembly that there were already multiple points in the process of obtaining a medical procedure at which a patient has to give their informed consent to it, and that there was no reason to artificially elongate that process in the case of abortions, particularly since other similar medical procedures require no such comparable waiting period. 

Unfortunately, the state is likely right that it could prevail with a higher court. Even if it was to lose in the 6th Circuit, the case could go up to the Supreme Court, where an enthusiastic anti-choice supermajority awaits, eager to burden people right out of their ability to get an abortion. 

Published with permission of The American Independent Foundation.