Tennessee asks Supreme Court to put hold on ruling that state's abortion waiting period is unconstitutional

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Tennessee is asking the Supreme Court to put a hold on a lower-court ruling that the state’s two-day waiting period for women seeking an abortion is unconstitutional, even though it’s been in effect for years and other states have similar waiting periods. 

Justice Brett Kavanaugh on Tuesday set a deadline for the three pro-abortion groups on the other side of the suit to respond to Tennessee’s emergency request that the Supreme Court lift a district court’s permanent injunction against the law. The waiting period has been on the books for more than five years, Tennessee’s emergency request said. 

The main thrust of the case is still at the Sixth Circuit Court of Appeals. But Tennessee is asking the Supreme Court to let it enforce its law as the litigation makes its way through the courts. 

“As long as the waiting period remains enjoined, some unborn children will be aborted who might otherwise be spared that fate,” Tennessee wrote in its emergency request, filed earlier this week. “Some women will choose abortion without making an ‘informed and deliberate’ decision… and some will later come to regret that irreversible decision.”

Sixth Circuit Judge Amul Thapar. (Handout)

Tennessee added: “By contrast, a stay will not substantially injure Respondents, who complied with Tennessee’s waiting period for five years while the litigation proceeded in the district court. During that time, Respondents continued to operate their clinics, and women in Tennessee continued to obtain abortions.”

The abortion clinics behind the suit against Tennessee are Bristol Regional Women’s Center, Memphis Center for Reproductive Health and Planned Parenthood of Tennessee and North Mississippi. 

Tennessee previously asked the Sixth Circuit to stay the district court ruling but a divided panel didn’t grant the request. Judge Amul Thapar, a Trump appointee who was on the former president’s Supreme Court shortlist, dissented. 

The district court’s decision, Thapar said, “defies Supreme Court… precedent.” He specifically pointed to Planned Parenthood v. Casey, when the high court upheld Pennsylvania’s abortion waiting period. 

“The majority’s failure to issue a stay merits immediate correction either by our court or a higher one,” Thapar also said. 

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But the majority on the three-judge Sixth Circuit panel said that it believes “Tennessee’s waiting period unduly burdens women’s abortion rights” because of “logistical, financial, and medical hurdles caused by Tennessee’s waiting period.”

The majority – one Clinton appointee and a George W. Bush appointee – also accused Thapar of “zeal to uphold what appears to be yet another unnecessary, unjustified, and unduly burdensome state law that stands between women and their right to an abortion.”

The due date Kavanaugh set for the abortion groups’ response is April 15 at 4 p.m. ET. The case came to Kavanaugh due to geography alone. 

Fox News’ Shannon Bream and Bill Mears contributed to this report. 

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