Tennessee Officials Ask SCOTUS for Stay of Lower Court Judgment Finding Abortion Waiting-Period Law Unconstitutional

Tennessee state officials, led by Attorney General Herbert H. Slatery III, are petitioning the Supreme Court of the United States for a stay of a Middle District of Tennessee judgment that enjoined the state from enforcing a waiting-period law for abortions that, according to the petitioners, is “materially indistinguishable” from a provision that survived in oft-invoked abortion-rights case Planned Parenthood v. Casey.

In the Monday filing, the applicants argued against the lower courts’ characterizations of a 2015 state law requiring physicians to provide information “orally and in person” about the abortion procedure “and its alternatives” 48 hours before a patient is scheduled to receive an abortion as facially unconstitutional, after plaintiff-respondents Bristol Regional Women’s Center P.C., Memphis Center for Reproductive Health, and Planned Parenthood of Tennessee and North Mississippi brought suit against the state. The district court decision, in the case Adams & Boyle P.C. v. Slatery, was passed down Oct. 14, 2020, followed by the Sixth Circuit denial of a stay pending appeal in Bristol Regional Women’s Center P.C. v. Slatery on Feb. 19.

The judgment in Casey set the undue burden standard, which is used to test whether a law’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion,” pursuant to the SCOTUS opinion. Casey did not, however, strike down the provisions of the Pennsylvania law being challenged that required a 24-hour waiting period and informed consent — which is why the operative applicants believe the holdings against their Tennessee law contravene Casey’s precedent.

The lower courts’ findings were that the Tennessee law is “likely” invalid and unconstitutional on its face, for failure to pass the undue burden test. Particularly, the Sixth Circuit concluded that the requirements of the Tennessee law constitute an undue burden “for at least 60 to 80 percent of women seeking an abortion who ‘qualify as low income.’” The state, however, contended otherwise, noting “undisputed evidence” that showed only a slight decline in the number of abortion procedures taking place after the waiting-period law went into effect.

Regardless, the lower courts’ judgments lack of favor for the applicant-defendants now have prompted it to seek a stay of those judgments from the highest court, addressed to Justice Brett Kavanaugh, who handles such applications in the Sixth Circuit.

Pursuant to Hollingsworth v. Perry, “To obtain a stay pending the filing and disposition of petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

The applicants believe that their case fits all three criteria, claiming that the district court’s original enjoinment already has created “irreparable harms” and hoping that the court recognizes the purported rejection of Casey’s precedent.