Last Thursday, August 5, the U.S. Sixth Circuit Court of Appeals upheld a 2015 Tennessee law requiring a 48-hour waiting period before an abortion, among other restrictions.
The law, often referred to as “common sense legislation” by pro-life advocates, mandates that women seeking an abortion must attend an in-person meeting with the physician performing or inducing the abortion at least 48-hours before the abortion, during which the woman is to be informed of the following:
- Confirmation of pregnancy and the probable gestational age of the unborn child;
- The physician has “a legal obligation to take steps to preserve the life and health of the child” if a viable child is born prematurely during the abortion;
- “Numerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child, if she chooses not to have the abortion, whether she wishes to keep her child or place the child for adoption, and that her attending physician or referring physician will provide her with a list of the agencies and the services available if she so requests;” and
- “Normal and reasonably foreseeable medical benefits, risks, or both of undergoing an abortion or continuing the pregnancy to term.”
Should a woman return for an abortion after the waiting period she would also be required to sign a form of informed consent stating she had been made aware of the above. The only exception to the waiting period is in the case of “a medical emergency that prevents compliance” which is defined as an abortion that must be immediately performed to save the life of the mother or prevent “serious risk of substantial and irreversible impairment of major bodily function.”
It’s also notable that the law requires any office providing elective abortions to post signs which can be clearly seen by the patients that inform them no one can coerce or force them to have an abortion, and of their rights to contact any local or state law enforcement agency in such cases.
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Pro-life advocates consider this law to be essential because it ensures informed consent as well as provides the crucial time needed for the expecting mother to change her mind about going through with the deadly procedure.
In fact, the law helped save lives for over five years, until it was challenged and overturned after District Judge Bernard A. Friedman deemed it unconstitutional in October 2020.
However, as the court battle continued, the U.S. Sixth Circuit Court of Appeals ruled in April 2021 the law could remain in effect while the state appealed Judge Friedman’s decision.
Although abortion proponents claimed the law posed an undue burden on women by prolonging abortions and sometimes even caused women to miss the eligibility period completely, they failed to prove this in court.
On August 5, the Sixth Circuit Court of Appeals reversed the federal court decision, allowing the 48-hour waiting period and law to remain in effect.
In the decision, the justices sided with the state attorneys who pointed out the law could only be struck down if it prevented a large percentage of women from obtaining abortions, stating:
“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. None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period. And none of the witnesses could point to specific women who, due to experiences of rape, incest, or abuse, found the waiting period traumatizing or were prevented from obtaining an abortion. This lack of evidence is fatal to their as-applied challenge. So it too must fail.”
Furthermore, the justices wrote:
“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. 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.”
According to the most recent data available from the Tennessee Department of Health, the number of abortions obtained by women in Tennessee has dropped by 12%, from 9,861 in 2014 to 8,636 in 2017. Pro-life advocates hope this decline continues thanks to this law and other similar legislation.
