Tennessee filed an emergency request with the Supreme Court on Monday, asking the justices for permission to enforce a 48-hour waiting period for abortions while it appeals a federal district court’s ruling that declared the waiting period unconstitutional. Characterizing the waiting period as “materially indistinguishable” from one the Supreme Court upheld nearly 30 years ago in Planned Parenthood of Southeastern Pennsylvania v. Casey, Tennessee told the justices that although 14 other states have similar laws, it is “the only State in the Nation that cannot enforce its law because of a federal judicial decree.”
In its filing on Monday in Slatery v. Bristol Regional Women’s Center, the state described the waiting period as modest. Under state law, abortion providers must “give their patients important information about abortion and its alternatives at least 48 hours before performing an abortion, except in a medical emergency,” the state said. During the four years that the waiting period was in effect, the state wrote, the number of abortions in the state “declined only slightly,” reflecting nationwide trends.
A federal district court struck down the waiting period last fall, ruling that the wait made it harder for patients to obtain abortions without providing any benefits. Waiting periods require patients to make two separate visits to an abortion clinic, U.S. District Judge Bernard Friedman wrote, creating “logistical and financial obstacles” that disproportionately burden low-income patients. Tennessee’s law, Friedman added, “demeans women by implicitly questioning their decision-making ability.”
The state appealed Friedman’s ruling, and in February, a divided panel of the U.S. Court of Appeals for the 6th Circuit refused to put the ruling on hold while the appeal proceeds. That refusal led to Monday’s filing, which asks the justices to intervene and reinstate the waiting period while the litigation continues in the 6th Circuit.
In its filing, Tennessee contended that if the 6th Circuit eventually upholds the law, there is a good chance that the Supreme Court will grant review to weigh in on the correct test to determine whether abortion laws are constitutional – specifically, whether courts should balance the burdens that an abortion law imposes against its benefits, as the Supreme Court indicated in Whole Woman’s Health v. Hellerstedt, or whether the court’s decision in Casey requires courts to consider only whether a law imposes a substantial obstacle, as Chief Justice John Roberts indicated last year in his separate opinion in June Medical Services v. Russo.
The state’s request goes to Justice Brett Kavanaugh, who handles emergency requests from the geographic area that includes Tennessee. Kavanaugh can act on the request himself or, as is more likely, refer it to the full court.
This post is also published on SCOTUSblog.
