A federal appeals court has upheld a Tennessee pro-life law that requires a 48-hour waiting period before an abortion and helps women and saves the lives of unborn children.
Tennessee lawmakers passed the law in 2015, requiring abortion facilities to provide informed consent information to women 48 hours prior to doing an abortion. And for five years, the state enforced the law. However, a group of abortion facilities challenged the law, and, in October, a federal judge ruled that it unconstitutionally burdens women’s access to abortion.
Earlier this year, a divided 2-1 decision, the judges rejected Tennessee Attorney General Herbert Slatery’s request to enforce the pro-life law while the appeals process continues.
But today, the federal appeals court upheld the law, ruling that the waiting period was not a “substantial obstacle” which posed an “undue burden” to abortion prior to viability — the point when a baby is able to live outside the womb. The case, styled as Bristol Regional Women’s Center v. Slatery, is an en banc opinion, meaning every available judge on the 16-person circuit heard the matter. The final vote was 9-7 for the pro-life law.
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“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,” Circuit Judge Amul Thapa wrote.
More from the decision:
A law regulating abortion is facially valid if it meets two requirements: (1) the law is “reasonably related to a legitimate state interest,” and (2) the law does not place a “substantial obstacle” in the path of a large fraction of women “seeking an abortion of a nonviable fetus.”
If this standard appears “highly deferential,” that’s because it is. The rule is designed to respect the constitutional prerogatives of democratically accountable legislatures and executives. So under rational basis scrutiny, an act remains constitutional even if—to the judge’s eye—it seems to offer “little if any benefit.” All that matters is whether the state conceivably had a rational basis to enact the regulation at issue, judged under the standards of “traditional rational-basis review.”
In Casey, the Supreme Court held that abortion waiting periods are rationally related to at least two legitimate state interests. First, they are “a reasonable measure to implement the State’s interest in protecting the life of the unborn.” Casey, 505 U.S. at 885 (joint opinion). And second, they are a reasonable way to ensure that a woman’s consent is “informed and deliberate.” Id. Just as these rationales justified Pennsylvania’s 24-hour waiting period, so too do they justify Tennessee’s 48-hour waiting period. Thus, Tennessee had (as a matter of law) a rational basis for enacting its waiting period.
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Here, the Supreme Court has already told us that abortion waiting periods clear this very low bar. “The idea that important decisions will be more informed and deliberate if they follow some period of reflection [is not] unreasonable, particularly where the statute directs that important information become part of the background of the decision.” Casey, 505 U.S. at 885 (joint opinion); see also EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 436–37 (6th Cir. 2019) (noting that informed consent is generally an important prerequisite to performing a medical procedure). And a legislature could conclude that some women, even if the number is small, will opt not to have an abortion after this period of reflection. Given Tennessee’s strong “interest in protecting the life of the unborn,” this sort of rational speculation is sufficient. Casey, 505 U.S. at 873, 885 (joint opinion). For these reasons, the Tennessee legislature had a rational basis to enact a 48-hour waiting period.
Precedent compels this result. In Casey, the Supreme Court held that Pennsylvania’s 24-hour abortion waiting period was not an undue burden. In doing so, the Court recognized that the law (1) would often cause delays of “much more than a day” given the need to schedule two appointments; (2) would be “particularly burdensome” for “those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others”; (3) might lead to women experiencing additional “harassment” or “hostility”; and (4) would have “the effect of increasing the cost and risk of delay of abortions.” Casey, 505 U.S. at 886 (joint opinion) (cleaned up). Still, the Court held that these findings were not enough to “demonstrate that the waiting period constitutes an undue burden.” Id. This was true even for the women most affected by the law, such as those with low incomes. Id. at 886–87.
The appeals court concluded: “Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.”
Alliance Defending Freedom attorneys filed a friend-of-the-court brief with the 6th Circuit on behalf of the Christian Medical and Dental Associations explaining that the U.S. Supreme Court has already upheld similar laws requiring a waiting period before abortions can be procured.
“Every woman should have the information she needs to make the healthiest choice for everyone involved in a pregnancy,” said ADF Senior Counsel Denise Harle. “Many women resort to abortion because they feel it is their only choice and then regret the decision for years to come. As the 6th Circuit held, the Supreme Court has already recognized that state governments have the constitutional authority to provide women contemplating abortions the opportunity to receive crucially important information before such a life-changing procedure is performed. Tennessee’s law is a commonsense, compassionate, and constitutional statute that protects women, and the 6th Circuit reached the right result in upholding it.”
Lawyers for the abortion facilities argued that the law caused women to delay their abortions, and a few were not able to abort their unborn babies at all.
But Tennessee Right to Life responded that the law is saving babies’ lives.
“This common sense policy, in effect since 2015, has resulted in the saving of countless unborn lives and a lack of regret by mothers who had time to further consider her decision following provision of informed consent information,” it commented last fall. “The extra 48-hours also allowed mothers the opportunity to identify life-affirming resources in her community or region.”
Waiting periods help women by giving them time to consider information about the abortion, its risks and alternatives and the development of their unborn babies. They also save babies’ lives.
In 2019, Dr. Priscilla Coleman, a professor at Bowling Green State University, testified that 25 percent to 40 percent of women seeking abortions arrive at the abortion facility undecided. She said her research found that informed consent requirements and waiting periods do help women.
Another study from University of California, San Francisco also found that some women change their minds and choose life for their unborn babies after a counseling session and waiting period.
