Tennessee filed an emergency request on Monday asking the US Supreme Court to reinstate a 48-hour mandatory waiting period for abortions pending appeal.
The law was challenged by several doctors and a medical center on behalf of their patients. US District Judge Bernard Friedman held in October that the waiting period was unconstitutional, following “five years of litigation and a four-day bench trial.” He blocked enforcement of the law, stating:
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.”
The state appealed this ruling to the US Court of Appeals for the Sixth Circuit, but the Sixth Circuit similarly refused to allow the enforcement of the law. The appeals court was unconvinced that the state was likely to succeed on the merits of the case during its appeal, which is one of the criteria the court must assess in determining whether to uphold or end an injunction.
The state is now awking the Supreme Court to allow enforcement of the law while the law itself is litigated in the courts. In its appeal, it argued that it has “now been unable to enforce its waiting period for over five months. And although fourteen other States have similar waiting-period laws that generally require two trips to an abortion provider, Tennessee is the only State in the Nation that cannot enforce its law because of a federal judicial decree.”
The request was sent to Justice Brett Kavanaugh, who handles the emergency requests in the relevant geographic area.