Federal Judge Strikes Down Waiting Period for Abortion in Tennessee

The ruling, which called the state’s 48-hour waiting period “gratuitously demeaning,” came at a pivotal moment for abortion access, as the Senate considers Judge Amy Coney Barrett for the Supreme Court.

Credit...Karen Pulfer Focht/Reuters

A federal judge on Wednesday struck down a Tennessee law that required women to wait 48 hours after visiting a clinic to have an abortion, finding that it placed an undue burden on women, particularly low-income women, by requiring them to travel to a health center twice for the procedure.

The judge, Bernard A. Friedman, also said the waiting period was “gratuitously demeaning to women who have decided to have an abortion.”

“Defendants’ suggestion that women are overly emotional and must be required to cool off or calm down before having a medical procedure they have decided they want to have, and that they are constitutionally entitled to have, is highly insulting and paternalistic — and all the more so given that no such waiting periods apply to men,” he wrote.

The ruling was significant, as it was the first by a federal court to strike down a waiting period since a 1992 U.S. Supreme Court decision upheld a 24-hour waiting period in Pennsylvania, according to the Center for Reproductive Rights, which represented the Tennessee clinics that sued to stop the law. And although it is unlikely to have an immediate effect in other states, it sets a precedent for other federal courts to cite when reviewing similar laws.

Waiting periods are one of a number of abortion restrictions that could ultimately be ruled upon by the Supreme Court, which could tip further to the right if President Trump’s latest nominee, Amy Coney Barrett, is confirmed, as expected, by the U.S. Senate.

Autumn Katz, senior counsel at the Center for Reproductive Rights, said she hoped the decision “serves as a wake-up call to lawmakers trying to interfere with patients’ personal medical decisions.”

“Patients do not need politicians to dictate their decision-making process,” she said. “This law is demeaning and actually harms patients by imposing unnecessary costs and pushing abortion later in pregnancy.” 

The Tennessee Attorney General’s Office, which defended the state’s waiting period in court, said it was considering an appeal.

“We are disappointed in the ruling that comes a full year after the trial and five years after the law was passed by our elected representatives,” a spokeswoman for the office said on Wednesday. “We are evaluating next steps, including appealing the order.”

Tennessee Right to Life, an advocacy group opposed to abortion, condemned the decision and said it was confident it would be reversed on appeal.

“Not only is this decision a slap at Tennessee’s abortion-vulnerable women, it is an affront to Tennessee’s voters who passed a 2014 constitutional amendment in which allowing a short waiting period was a key factor,” Brian Harris, the president of Tennessee Right to Life, said. “Our organization remains committed to seeing a similar statute drafted and enforced during the next legislative session.”

Currently, about half of the states in the country have waiting periods on the books. The center said it was also challenging waiting periods in Arizona, Florida, Louisiana, Mississippi, Oklahoma and North Carolina.

Waiting periods have been struck down before but in state courts. A state court in Iowa struck down a waiting period in 2018, as did the Tennessee Supreme Court in 2000, according to Elizabeth Nash, an expert at the Guttmacher Institute, which tracks abortion statistics.

Conservative lawmakers have already chipped away at abortion access, reducing it substantially in a number of Republican-led states over the past decade. Anti-abortion activists say they are closer than ever to their long-held goal of reversing Roe v. Wade, the landmark 1973 Supreme Court decision that extended federal protections to abortion.

The decision striking down Tennessee’s law was the second victory for abortion-rights advocates this week. It came one day after the U.S. Court of Appeals for the Fifth Circuit struck down a Texas measure that would have banned the most common abortion procedure after 15 weeks of pregnancy. The law had not gone into effect and it was not clear yet if Texas planned to appeal the ruling.

A spokeswoman for Attorney General Ken Paxton of Texas said the office was “analyzing the Fifth Circuit’s decision and evaluating all options for further review.” The spokeswoman added that Mr. Paxton “will continue to defend the Legislature’s decision.”

The Tennessee law, which went into effect in 2015, required women seeking an abortion to receive information in person beforehand and then to wait at least 48 hours after the visit for the procedure — subject to a strict medical emergency exception. Among other requirements, the law mandated that a physician inform a woman seeking an abortion that “numerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child.”

State officials argued that the waiting period furthered the state’s interests in protecting fetal life “by offering prospective abortion patients an opportunity to make a different choice.” Tennessee officials also argued that the waiting period benefited women’s mental and emotional health by giving them more time to reach “certainty” in their decision.

But Judge Friedman, who was appointed by President Ronald Reagan in 1988, wrote that the evidence showed that a vast majority of women seeking an abortion were certain of their decision by the time they first appeared at a clinic. If they miss their second appointment, he wrote, it is most likely because they cannot “overcome the financial and logistical barriers the 48-hour waiting period imposes.” Those barriers include taking time off from work, arranging for child care and paying for transportation, he wrote.

The plaintiffs “demonstrated conclusively that the statute causes increased wait times, imposes logistical and financial burdens, subjects patients to increased medical risks, and stigmatizes and demeans women,” wrote Judge Friedman of the Eastern District of Michigan, who serves as a visiting judge for the Middle District of Tennessee, where the case was heard.

“These burdens are especially difficult, if not impossible, for low-income women to overcome, and the evidence clearly shows that the vast majority of women seeking abortions in Tennessee are low income,” the judge wrote. “Further, plaintiffs have shown that the statute undermines the doctor-patient relationship and imposes operational and financial burdens on abortion providers.”