In a 2-1 decision on Friday, the US Sixth Circuit Court of Appeals rejected a request to revive a Tennessee law requiring a 48-hour waiting period before abortions while the court hears an appeal of the district court’s decision that ruled the law unconstitutional.
The 2015 law mandated that women make two trips to an abortion clinic. During the first trip, women receive mandatory counseling and are informed of the risks of abortion. The law required women to then wait 48 hours before returning for the abortion. This was intended to ensure that the consent to an abortion is an informed consent according to supporters of the law.
The US District Court of the Middle District of Tennessee struck down the requirement in 2020, declaring it unconstitutional. Directors of abortion clinics testified that the delay created by the 48-hour waiting period pushed some women past the time they could have an abortion. Judge Bernard Friedman wrote that the burdens imposed by the law put “women’s physical and psychological health and well-being at risk.” Judge Friedman also explained that the law particularly affected low-income women.
In its appeal, the Office of the Tennessee Attorney General asserted that the 48-hour waiting period is not unconstitutional. The state argued that the law’s benefits and burdens were not properly balanced. Citing precedent, the state argued that in Planned Parenthood v. Casey, the Supreme Court ruled that waiting periods were constitutional.
Judge Karen Nelson Moore wrote for the majority of the Sixth Circuit, denying the state’s request to put aside the district court’s ruling until the appeal is heard. Judge Moore explained that the appeal was unlikely to succeed because the 48-hour waiting period “appears to be yet another unnecessary, unjustified, and unduly burdensome state law that stands between women and their right to an abortion.”
Judge Amul Thapar dissented, saying that the Supreme Court decided that waiting periods are constitutional.