By Amy Howe
on April 5, 2021
at 10:21 p.m.
Tennessee filed an urgency petition with the Supreme Court on Monday asking the judges for permission to enforce a 48-hour wait for abortions while appealing a federal district court decision ruling the wait unconstitutional. Tennessee described the wait as “materially indistinguishable” from a wait the Supreme Court upheld against Casey nearly 30 years ago in planned parenting in southeastern Pennsylvania, and told judges that 14 other states have similar laws, but ” the only state in the nation that cannot enforce its law due to a federal decree. “
In its filing on Monday in Slatery against the Bristol Regional Women’s Center, the state described the waiting time as modest. Under state law, abortion providers “must provide their patients with vital information about the abortion and its alternatives at least 48 hours before performing an abortion, except in the event of a medical emergency,” the state said. During the four years that the waiting period was in place, the number of abortions in the state “decreased only slightly”, reflecting trends across the country.
A federal district court cut waiting times last fall, ruling that waiting makes it difficult for patients to get abortions without benefits. Waiting times require patients to make two separate visits to an abortion clinic, wrote US District Judge Bernard Friedman, creating “logistical and financial barriers” that place a disproportionate burden on low-income patients. Tennessee law, Friedman added, “humiliates women by implicitly challenging their ability to make decisions.”
The state appealed Friedman’s ruling, and in February a split panel on the US Circuit 6 Court of Appeals refused to put the verdict on hold pending appeal. That denial led to the filing on Monday urging judges to intervene and resume the wait while the 6th circuit litigation continues.
In its filing, Tennessee argued that if Circuit 6 finally complies with the law, there is a good chance the Supreme Court will grant a review to weigh the correct test to determine if abortion laws are constitutional – specifically, whether courts The balance should be balanced by burdens that an abortion law imposes on its benefits, as indicated by the Supreme Court in Whole Woman’s Health v Hellerstedt, or whether the court’s decision in Casey requires that the courts only consider whether a law is one as Chief Justice John Roberts suggested last year in his separate June Medical Services opinion against Russo.
The state’s request goes to Justice Brett Kavanaugh, who handles emergency requests from the geographic area that includes Tennessee. Kavanaugh can respond to the request himself or, as more likely, refer it to court.
This article was originally published by Howe on the Court.