Tennessee’s 48-hour abortion waiting period is legal: court

A federal appeals court on Thursday issued a ruling upholding Tennessee’s 48-hour waiting period for an abortion, overturning a lower court’s previous ruling that found the rule to be unconstitutional.

U.S. 6th Circuit Judge Amul Thapar wrote in the majority opinion that the plaintiffs in the case — the Bristol Regional Women’s Center and the Memphis Center for Reproductive Health — had not provided evidence that proved the waiting period was a “substantial obstacle” for women seeking abortions.

The law, which was enacted in 2015, requires that a physician provide a patient seeking an abortion with information about the risks of abortions and pregnancies and then wait two days before performing the procedure. A physician who violates this law will be considered to have committed a class E felony. The law does not apply if a physician determines that waiting two days would threaten the patient’s life.

The appeals court wrote that Tennessee’s waiting period was in fact constitutional as it had not been shown to be an obstacle for a “large fraction” of women who are seeking abortions.

It also pointed to statistical evidence that showed women in Tennessee continued to obtain abortions “in large numbers” even after the 48-hour waiting period was enacted, with roughly the same amount of abortions performed in the years before and after it went into effect.

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

In the case that the two-day waiting period causes a woman to miss a deadline to have a medical abortion — by which the patient is administered a pill —  the court argued that she still had the option of receiving a surgical abortion. The court also found that the plaintiffs had not been able to show that a significant amount of women would be forced out of the window to get an abortion by the waiting period.

U.S. Circuit Judge for the Sixth Circuit Court of Appeals Karen Nelson Moore was the sole justice to dissent, citing the “severe logistical, financial, medical, and psychological burdens” that the law imposes on women.

Tennessee Attorney General Herbert Slatery (R), who is named as one of the defendants in the case, said in a statement to The Associated Press that he found the court’s decision “gratifying.” He also pointed to academic literature that argues that law exacerbates stereotypes about women as being “irrational or overly emotional.”

“(A) law passed by our representative lawmakers and signed by the governor five years ago — yes, five years ago — is constitutional,” Slatery said. “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.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, 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,” Northup said to the AP.