A federal judge on Wednesday declared a 2015 Tennessee law that requires a waiting period before an abortion unconstitutional. 

The law required anyone seeking an abortion to make two trips to a clinic. The first visit for in-person counseling by a doctor. The individual must then must wait at least 48 hours before returning for an abortion. 

Attorneys representing three of the state’s abortion providers called it a “mandatory time out” that stigmatizespeople seeking abortions, imposes particularly tough burdens on low-income residents and delays abortions until later in pregnancies when medical risks rise.

Protesters cheer for speakers against anti-abortion legislation at Legislative Plaza Tuesday, May 21, 2019, in Nashville, Tenn.
Protesters cheer for speakers against anti-abortion legislation at Legislative Plaza Tuesday, May 21, 2019, in Nashville, Tenn.  COURTNEY PEDROZA/THE TENNESSEAN

The state argued Tennessee has two key interests in upholding the waiting period law: protecting fetal life and providing women time to form “mental clarity” about their decision. 

Senior federal District Judge Bernard A. Friedman ruled Wednesday against the state, finding the portion of the law related to the waiting period unconstitutional. With the ruling, the state has been blocked from enforcing the law. 

“Defendants have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee. It is apparent that this waiting period unduly burdens women’s right to an abortion and is an affront to their ‘dignity and autonomy,’ ‘personhood’ and ‘destiny,’ and ‘conception of . . . [their] place in society,’” Friedman wrote.

“Defendants’ suggestion that women are overly emotional and must be required to cool off or calm down before having a medical procedure they have decided they want to have, and that they are constitutionally entitled to have, is highly insulting and paternalistic — and all the more so given that no such waiting periods apply to men.” 

State’s arguments ‘deeply flawed’

Opponents of the law celebrated Friedman’s decision on Wednesday. 

“We hope today’s decision serves as a wakeup call to lawmakers trying to interfere with patients’ personal medical decisions,” said Autumn Katz, senior counsel at the Center for Reproductive Rights, lead attorney on the case.

“Patients do not need politicians to dictate their decision-making process. Patients should be trusted to make decisions about their own families and healthcare. This law is demeaning and actually harms patients by imposing unnecessary costs and pushing abortion later in pregnancy.” 

A representative for the Attorney General’s office said the state plans to file an appeal to Wednesday’s decision. 

“We are disappointed in the ruling that comes a full year after the trial and five years after the law was passed by our elected representatives. We are evaluating next steps, including appealing the order,” Samantha H. Fisher, Attorney General’s office spokesperson, said in an email. 

The 2015 law was passed by the legislature in the wake of a referendum that passed the previous November putting the decision of how to legislate abortion in the hands of the General Assembly. 

Attorneys for the state argued in the waiting period lawsuit that the restriction was akin to other “informed consent” laws that ensure patients understand the procedure before undergoing treatment. 

But in his review of the law’s history, Friedman found “the legislature had no data suggesting that women seeking abortions lacked the information necessary for responsible decision-making or that medical professionals had identified a problem regarding a lack of information.”

And data from Memphis area health centers showed that even before the law, patients had to wait up to two weeks between scheduling the appointment and having the procedure, according to the judge’s ruling. After that, the wait period increased to two to three weeks for the first appointment and another one to two weeks for the second. 

With limits also in effect on how late in a pregnancy a patient can receive an abortion, Friedman noted that delays in appointments can affect their eligibility for the medical procedure. 

Based on testimony, Freidman found “that an abortion is a safe procedure,” he noted. “‘(M)ore than 97 percent’ of patients are ‘confident and clear’ in their decisions when they arrive at the Memphis health centers, which have an extensive informed consent process that remained largely unchanged,” after the bill was passed. 

The judge ultimately found the abortion providers’ testimony more credible than the state’s in discussions of informed consent. 

“In a further effort to show that the challenged statute is beneficial to women’s health, defendants point to … testimony that whether to have an abortion is a stressful and emotional decision; that stress and emotions compromise decision-making and result in more ’emotionally based,’ ‘hurried,’ and ‘less rational’ decisions; that short time limits hinder decision-making; and that abortion is associated with negative mental health outcomes,” he wrote. 

“The Court rejects these opinions because they are flatly contradicted by the credible

record evidence and are supported only by studies (including her own) which, as plaintiffs’ experts showed, are irrelevant or deeply flawed and deserve no serious consideration.”

Abortion laws in the courts

Meanwhile, two separate lawsuits related to new strict abortion laws in Tennessee remain before the court.

The lawsuits target Gov. Bill Lee’s controversial reproductive access laws, signed into law July 13, which would enact some of the nation’s most restrictive abortion regulations — including requiring abortion clinics to post a sign in the waiting area and in patient rooms informing people that it may be possible to reverse a medication abortion.

Failing to do so can result in a $10,000 fine for the clinic, though that portion of the new law was blocked by a federal judge before it could take effect Oct. 1.

But there remains no medical consensus on whether that reversal is possible, USA Today found. 

An August lawsuit argues that requiring doctors to share these claims violates their First Amendment rights because it is “compelled speech” that relies on “false and misleading information with which they disagree,” insists they refer patients to a government-run website to “partake in experimental and unproven treatments that run counter to their patients’ best interests,” and runs counter to their ethical obligations as medical provides. 

District Judge William L. Campbell halted the rollout of the abortion restrictions less than an hour after Lee signed the measure into law in mid-July by issuing a temporary restraining order as part of the earlier 2020 suit. Campbell later issued a preliminary injunction blocking the state from implementing the law while the courts rule on the case.

The state has filed an appeal to Campbell’s ruling. 

The governor’s office did not immediately return a request for comment.

Source: https://eu.tennessean.com/story/news/politics/2020/10/14/tennessee-abortion-law-federal-judge-overturns-2015-law-requiring-waiting-periods-abortions/3652946001/