A federal appeals court overturned a lower court decision Thursday that said making women wait 48 hours before having an abortion is illegal.
Judge Amul Thapar began his opinion for the en banc court:
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.
Thapar — a former President Donald Trump appointee who is on the short list for the Supreme Court — also noted that “Tennessee’s waiting-period law resulted from a decades-long democratic process.”
The court’s decision continues:
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.
Thapar’s opinion for the court says the law protects the interests of the state and does not harm women:
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.”
The 9-7 opinion continues:
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.” 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. For these reasons, the Tennessee legislature had a rational basis to enact a 48-hour waiting period.
Later the Cincinnati-based court continues:
Indeed, the factual findings by the district court in Casey are analogous to the district court’s factual findings here. For example, the district court in Casey found that the waiting period would “result in delays far in excess of 24 hours,” with a majority of women facing delays of “48 hours to two weeks.”Similarly, the district court here found that depending on the provider, patients could sometimes wait one to three weeks after their first appointment, rather than the statutory 48 hours. Both district courts also found that two appointments would increase costs related to transportation, lodging, lost wages, food, and childcare. And both courts noted that the waiting period would “be particularly burdensome” for low-income women. The Supreme Court analyzed these findings, but still held that Pennsylvania’s waiting period did not unduly burden access to abortion. We follow suit and hold that these findings do not amount to a substantial obstacle.
The Sixth Circuit also noted the law has not resulted in fewer abortions in the state:
If there is any distinction between the record in Casey and ours, it is the statistical evidence that women in Tennessee continued to obtain abortions in large numbers after the waiting period took effect. In Casey’s pre-enforcement challenge, the courts relied on expert testimony predicting the effects of the law. But the Tennessee law had been on the books for five years by the time the plaintiffs sued. And five years of data tell us much more than an expert’s prediction of how the law will play out. It is one thing to predict that the sky will fall tomorrow. It’s quite another thing to maintain that the sky fell five years ago for women seeking abortions when the numbers tell us otherwise: The year before Tennessee enacted the law, its clinics performed 12,373 abortions. And the year after Tennessee enacted the law, its clinics performed 11,235 abortions. And the next two years also saw abortion numbers in the State hover just under 11,000.2 So while abortions declined slightly (by about 9%), the law did not keep a large fraction of abortion seekers from obtaining the procedure.
And the decision also said the law does not impede abortion doctors or the abortion clinics they use:
Finally, the district court found that Tennessee’s waiting-period law “places significant burdens on the clinics themselves.” But the clinics have “no constitutional right to perform abortions.” That is why burdens on abortion providers are relevant only if they unduly burden women’s access to abortion. Tennessee’s law does not require clinics to close or doctors to stop performing abortions. And for the reasons discussed elsewhere in this opinion, the waiting period does not unduly burden abortion more broadly. So this rationale offers no independent basis for finding that Tennessee’s law poses a substantial obstacle to abortion.
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.
Planned Parenthood and the Center for Reproductive Rights said they will continue to fight the waiting period.
“The forced delay requirement has nothing to do with patient health,” Ashley Coffield, president and CEO of Planned Parenthood of Tennessee and North Mississippi, said in the News Channel 5 report.
The abortion industry argued that Tennessee’s policy harms “low-income and communities of color” even as pro-life advocates point out that while black Americans account for about 14 percent of the child-bearing population in the United States, 36 percent of abortions are black babies.
“Abortion is health care and we at Planned Parenthood will continue to fight for our right to control our own bodies because our patients deserve nothing less,” the abortion provider said in the News Channel 5 report.
The case is Bristol Regional Women’s Center v. Slatery, No. 20-6267, in the United States Court of Appeals for the Sixth District.
Follow Penny Starr on Twitter or send news tips to pstarr@breitbart.com.
COMMENTS
Please let us know if you're having issues with commenting.