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Appeals court upholds Tennessee’s abortion waiting-period

August 5, 2021 GMT

A federal appeals court on Thursday upheld Tennessee’s 48-hour waiting period for women seeking abortions, arguing that opponents had failed to identify instances where a woman had been significantly burdened by the requirement.

The decision comes after a lower federal court last year struck down the 2015 law that requires those seeking an abortion to make two trips to a clinic — first for mandatory counseling and then for the abortion at least 48 hours later.

At the time, U.S. District Judge Bernard Freidman said the two-visit requirement posed logistical challenges for patients and clinics that could cause abortions to be delayed.

However, the 6th U.S. Circuit Court of Appeals disagreed and instead sided with the state’s attorneys, who argued that the law could be struck down only if it prevented a large percentage of women from obtaining abortions altogether.


“None of the plaintiffs’ witnesses could name specific women who could not get an abortion because the waiting period pushed them past the cutoff date,” the justices wrote. “None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period.”

The justices also pointed out that the law had been in effect for five years and abortions had not taken a dive as some had warned.

“It is one thing to predict that the sky will fall tomorrow,” the ruling states. “It’s quite another thing to maintain that the sky fell five years ago for women seeking abortions when the numbers tell us otherwise.”

Attorney General Herbert Slatery called the Sixth Circuit’s decision “gratifying.”

“(A) law passed by our representative lawmakers and signed by the governor five years ago — yes, five years ago — is constitutional,” Slatery said in a statement. “It has been on the books a long time. The court concluded that, during this time, the 48-hour waiting period has not been a substantial obstacle to getting an abortion in Tennessee.”

The Center for Reproductive Rights, which had filed the lawsuit on behalf of several abortion providers, criticized the court’s ruling.

“With this law, politicians are purporting they know better than patients when it comes to making personal decisions about their health care. It’s demeaning and medically unnecessary,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, said “this isn’t over” in response to the federal appeals court decision and added that Planned Parenthood will continue fighting medically unnecessary barriers to abortion services.

Included in the justices’ ruling was a lengthy dissent from Judge Karen Nelson Moore, who maintained that the waiting period law was an “undue burden” to women because it “peddles in stigma.”


“In this circuit, the scales have now tipped inescapably against women: their rights are secondary, their burdens immaterial, the obstacles they must face are nothing,” Moore wrote.

More than 20 states require patients to wait a specified amount of time — typically 24 hours — between counseling and the abortion procedure, according to the Guttmacher Institute, a research organization that supports reproductive rights.

Many Republican-led states, including Tennessee, have increasingly enacted anti-abortion laws in the hope that the conservative-leaning U.S. Supreme Court will eventually end the constitutional right to abortion protected under the 1973 Roe v. Wade landmark ruling.

Tennessee is currently awaiting a separate opinion from the 6th U.S. Circuit Court of Appeals on a sweeping abortion ban that prohibits the procedure as early as six weeks.