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Tennessee appeals ruling in abortion waiting-period case

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A federal appeals court has heard arguments over a Tennessee law requiring a 48-hour waiting period for abortions

NASHVILLE, Tenn. — A federal appeals court on Wednesday heard arguments in a Tennessee case over whether a 48-hour waiting period is a substantial burden to women seeking abortions.

A lower federal court last year struck down a 2015 Tennessee law that requires women to make two trips to an abortion clinic – first for mandatory counseling and then for the abortion at least 48 hours later.

In his October ruling, U.S. District Judge Bernard Freidman had found that the two-visit requirement posed logistical challenges for patients and clinics that could cause abortions to be delayed by weeks. The delays pushed some women past the cutoff date for medication abortions, forcing them to get surgical abortions, which have greater risks of complications. A few women were pushed beyond the time when they could receive an abortion altogether.

Arguing before the 6th U.S. Circuit Court of Appeals during a virtual hearing on Wednesday, the two sides disagreed whether those issues constitute a substantial burden that should invalidate the law.

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Sarah Campbell, with the Tennessee Attorney General’s Office, argued that the law can only be struck down if it prevents a large percentage of women from obtaining abortions altogether. After the law went into effect, abortions in Tennessee declined by only a small number and that was on par with decreases seen in other states. Since women can still obtain abortions, the law isn’t a substantial burden, Campbell argued.

Judge Karen Nelson Moore asked about women who might have to forgo paying rent or buying groceries because of the expense of missing work and travelling twice to a clinic. Campbell said that it would not be a substantial burden as long as the women were able to obtain the abortion. Campbell also argued that it was irrelevant that women might have to undergo surgical abortions instead of taking a pill.

Amber Katz, an attorney for several Tennessee abortion clinics, argued that the judges should uphold the lower court’s ruling. Between 60% and 80% of women obtaining abortions in Tennessee live in poverty, and the lower court found that the burden of having to make two trips to a clinic that could be hours away was substantial, Katz said.

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Tennessee earlier asked the court to reinstate the law while it appealed Freidman’s decision. A three-judge panel denied that request in February but was overruled two months later by the full court, which put the waiting period back in place for the time being.

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