Plaintiffs in Case Over Tennessee Abortion Waiting-Period Law File Response to Defendants’ SCOTUS Stay Application

On Thursday, the plaintiffs — and now, respondents — in a case challenging the constitutionality of a Tennessee abortion waiting-period law filed an opposition to the defendants’ April 5 application to the Supreme Court of the United States for a stay of lower court proceedings that fell in the plaintiffs’ favor.

Bristol Regional Women’s Center P.C., Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, and physician Kimberly Looney originally filed suit against Tennessee officials, arguing against a Tennessee law requiring that patients seeking abortions meet with their physicians in person, who will provide information about the procedure “and its alternatives,” and then wait for 48 hours before having the procedure.

The Middle District of Tennessee sided with the plaintiffs in October 2020 and enjoined the state from enforcing the law, which the defendants appealed to no avail in the Sixth Circuit. The defendants then applied for a stay in the Supreme Court, directly to Sixth Circuit Justice Brett Kavanaugh, as Law Street Media reported.

The defendants’ argument in their stay application centered around Planned Parenthood v. Casey and the alleged rejection by the lower courts of its precedent. According to the applicants, the “undue burden” standard set by Casey was not contravened by the law, and, in Casey, the 24-hour waiting period in the challenged law was not deemed unconstitutional.

In their opposition, the plaintiff-respondents disputed the state’s reasoning, emphasizing that the challenged law requires patients to “make a separate, medically unnecessary trip to meet with the physician in person and hear a state-mandated script, and then to delay the procedure for at least 48 hours,” noting that the time period is twice as long as the one upheld by Casey and that the law “contains only a narrow exception” for medical emergencies. Because of these “severe burdens,” according to the respondents, the waiting period is “one of the most extreme” in the country.

The respondents cited the district court’s findings that the waiting-period law imposes extensive “financial burdens, logistical obstacles, and significant medical risks” on patients seeking abortions — findings that were distinct from those in Casey, which lacked a “fully developed record” of to what extent the waiting period burdens patients.

An application for a stay in the Supreme Court denotes a request for “extraordinary relief,” which the respondents said they think is unwarranted, also disagreeing with the applicants’ argument that the state will suffer “irreparable harm” if the court does not grant the stay.

“Defendants misleadingly assert that without a stay, some women will choose abortion ‘without making an informed and deliberate decision,’ ” the respondents asserted. “But the Delay Law’s requirement that patients receive government-mandated information concerning abortion and pregnancy from a physician remains in effect; thus, the suggestion that Tennessee abortion patients may not be adequately informed absent a stay is demonstrably false.”

On the same day that the respondents filed their opposition, 21 states asked the Supreme Court for permission to file an amicus brief in support of Tennessee, stating their “strong interest in ensuring that enforcement of the statute at issue in this case not be enjoined.”

Despite the previous unfavorable judgment for the defendants in the Sixth Circuit, the proceedings in the appellate court have not ceased; on April 9, a panel of judges ruled that the en banc circuit court will hear the case, with Judge Karen Nelson Moore authoring a dissenting opinion.

The Center for Reproductive Rights, Kramer Levin Naftalis & Frankel LLP, Barrett Johnston Martin & Garrison LLC, and the Planned Parenthood Federation of America represent the plaintiff-respondents.