Federal judge: No, you can't force people to wait to have an abortion

On Oct. 14, a federal judge held that Tennessee’s 48-hour waiting period for abortions was unconstitutional. It’s the first time a waiting period has been found unconstitutional, and it’s a win for pro-choice advocates even as they face the prospect of a solidly anti-choice United States Supreme Court. 

The judge who issued the ruling, Bernard Friedman, is a longtime federal judge who was appointed by Ronald Reagan over 30 years ago. Friedman’s ruling presents a careful, comprehensive look at why waiting periods should be overturned.

Tennessee imposed the 48-hour waiting period back in 2015. Because Tennesee’s law also included some additional restrictions, such as requiring providers to have admitting privileges at a nearby hospital, some of the litigation was on hold while the Supreme Court considered Whole Women’s Health v. Hellerstedt, which addressed those concerns. Once that portion was settled, the case began again in Tennesee over the waiting period only. 

In reviewing the case, Friedman spent a lot of time studying what material the Tennessee Legislature considered when it passed the law. What became clear is that it ignored doctors and other experts’ testimony in passing the unnecessary waiting period law. 

For example, the Legislature heard testimony on poverty rates among women seeking abortions in the state. As of July 2014, 42% of women who obtained abortions had incomes under the federal poverty line, and 27% had incomes between 100% and 199% of the federal poverty line. 

A waiting period, the legislature was told, disproportionately affects people living in poverty. It requires two trips to a clinic, taking additional time off work, and arranging transportation and childcare. Additionally, since so few Tennesee counties have a clinic, providers testified, patients often had to travel long distances to get to an abortion. A recent study found that the waiting period could add over $900 to the cost of an abortion in the state. 

Another thing that became clear in looking at the legislative history was that the 48-hour waiting period was arbitrary. When asked why 48 hours was chosen, GOP state Sen. Mae Beavers explained only that it was a “sensible, reasonable [amount of] time.” Beavers felt 24 hours was too short because “it’s probably going to be too late in the day for the abortion to be performed and would be pushed into the next day anyway.”

Further, testimony at the trial court showed the 48-hour waiting period led to much longer delays. Before the law took effect in 2015, patients had to wait one to two weeks from when they scheduled an appointment to the time they had an abortion. After the law took effect, people had to wait two to three weeks for their first appointment and an additional one to two weeks for the second. 

Perhaps most persuasive, though, was testimony from doctors saying patients receive extensive opportunities to provide informed consent to the procedure. One doctor testified that requiring a second visit and artificially elongating the consent process “undermines patient autonomy, the doctor-patient relationship, and the informed consent process.” 

The court pointed out that existing Tennessee laws already required all medical providers to obtain informed consent before abortions or any other medical procedure. Nothing about abortion, wrote the judge, “requires the informed consent process to be altered or prolonged, and there is no evidence that a mandatory waiting period for this medical procedure, but not others, improves outcomes.”

Abortion providers testified about the extensive discussions they have with patients before performing an abortion. Patient educators inquire about whether the patient is sure of her decision or needs additional time. They describe the procedures, discuss family planning options, and determine that no one is coercing the patient to have an abortion. Patients also have lab work done, and an ultrasound is performed. 

For any other medical procedure, patients are granted autonomy when they consent to the procedure. They aren’t required to listen to politically driven anti-choice “counseling” that encourages them not to get the procedure, as Tennesee’s law does, nor are they required to wait an arbitrary extra amount of time for the procedure to be performed. 

That’s why the judge found the waiting period unconstitutional. It doesn’t do anything positive to protect women’s health, the ostensible reason for such laws, but it does burden their constitutional right to an abortion. 

It’s almost inevitable the state will appeal this decision, and it could be a case that goes all the way to the Supreme Court. In this round of litigation, science and reason prevailed. However, should it reach the highest court, it would likely be reversed, and the waiting period upheld. Chief Justice John Roberts has already said he doesn’t think waiting periods are burdensome. And Trump’s Supreme Court nominee, Judge Amy Coney Barrett, who is nearly certain to join the court, is a high-profile opponent of abortion, period. 

Judge Friedman weighed the science and the lived experience of people who seek abortions, particularly those who live in poverty. Regrettably, it’s possible those things won’t matter to the Supreme Court.

Published with permission of The American Independent Foundation.