Tennessee judge strikes down 'paternalistic' abortion wait-time law for assuming women seeking procedure are 'overly emotional'

Decision comes on heels of ruling that strikes down Texas law effectively banning the most common abortion procedure in the second trimester

Alex Woodward
New York
Thursday 15 October 2020 18:43
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A federal judge has declared Tennessee’s 48-hour waiting period for abortions unconstitutional, striking down the "gratuitously demeaning" and “paternalistic” a rule requiring women to make two trips – one for a counselling session and another for the procedure.

US District Judge Bernard Friedman ruled that the law “substantially burdens" women seeking an abortion in the state, among more than a dozen that require similar waiting periods.

He condemned the rule for suggesting that  “women are overly emotional and must be required to cool off or calm down” before the procedure, calling it  “insulting” and “paternalistic”.

“Defendants’ suggestion that women are overly emotional and must be required to cool off or calm down before having a medical procedure they have decided they want to have, and that they are constitutionally entitled to have, is highly insulting and paternalistic — and all the more so given that no such waiting periods apply to men,” the judge wrote.

He stipulated in his more than 100 page ruling that "evidence demonstrates that at least [95 per cent] of women are certain of their decisions, post-abortion regret is uncommon, and abortion does not increase women’s risk of negative mental health outcomes.”

The ruling arrived on the heels of a federal appellate court ruling on Tuesday that struck down a Texas law effectively banning the evacuation and dilation procedure, the most common abortion procedure in the second trimester.

In a two-to-one ruling among the three-judge panel, the Fifth Circuit Court of Appeals argued that the Texas ban “unduly burdens a woman’s constitutionally protected right” to obtain an abortion, while forcing care providers "to act contrary to their medical judgment [and] the best interest of their patient.”

Both rulings arrived as Amy Coney Barrett, Donald Trump’s appointee to the US Supreme Court, participated in confirmation hearings in the Senate.

Democrats and abortion rights advocates fear her ascension could jeopardise women’s healthcare by ruling to overturn the landmark decision from Roe v Wade and stifle access to reproductive health services by dismantling the Affordable Care Act.

Unlike the Texas ban, which was on hold while tied up in litigation since its passage in 2017, the ruling on Tennessee’s 2015 law could have an immediate impact among women seeking abortion services in the state.

Attorneys for the state argued  that the waiting period would allow women to reach “mental clarity” before their procedure.

Abortion providers who sued the state to strike down the law argued that the waiting period disproportionately impacts low-income families and could delay procedures until later in their pregnancies, when risks are greater.

Judge Friedman, appointed by former Republican president Ronald Reagan, ruled that the defendants “have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee.”

He added that a mandatory waiting period is “gratuitously demeaning” as it assumes patients are not capable of making decisions themselves, he argued.

The ruling arrives four months after the US Supreme Court struck down a Louisiana law that would have closed all but one abortion health centre in the state. The high court struck down a similar Texas law in 2016.

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