The full U.S. Court of Appeals for the 6th Circuit ruled Thursday that a Tennesee law mandating a 48-hour waiting period before a woman can get an abortion can stand. In their ruling, the justices found that the law as written is constitutional, as it does not cause an undue burden to women seeking an abortion.
The state’s mandated waiting period — which requires a woman to make a separate trip to an abortion facility for mandatory counseling 48-hours before she has an abortion — was ruled unconstitutional in October 2020 by a lower court. In that ruling, U.S. District Judge Bernard Friedman determined that the waiting period caused undue hardship for women, writing, “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.”
In reality, every medical procedure includes a visit to a doctor and/or discussion prior to scheduling unless it is an emergency situation. Medical consultations days or even weeks before a surgery takes place are standard. Allowing a woman to meet with an abortionist to discuss the abortion procedure prior to undergoing the abortion allows women the opportunity to learn about the procedure as well as the risks associated with it before she agrees to it. Research has shown that waiting periods do save preborn children from abortion, giving women time needed to consider other options.
The state appealed the ruling from the lower court, and in April, the federal appeals court ruled that the law could go back into effect while it reviewed the state’s appeal.
In a brief reflecting its ruling, the 6th Circuit said, “None of the plaintiffs’ witnesses could name specific women who could not get an abortion because the waiting period pushed them past the cutoff date. None of the witnesses could identify specific women whose medical conditions cause complications or psychological harm during the waiting period. And none of the witnesses could point to specific women who, due to experiences of rape, incest, or abuse, found the waiting period traumatizing or were prevented from obtaining an abortion.”
Based on this lack of evidence, the court went on to conclude that “Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee.”
According to the Associated Press, Tennessee Attorney General Herbert Slatery praised the court’s decision. “(A) law passed by our representative lawmakers and signed by the governor five years ago — yes, five years ago — is constitutional,” he said in a statement. “It has been on the books a long time. The court concluded that, during this time, the 48-hour waiting period has not been a substantial obstacle to getting an abortion in Tennessee.”
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