988 F.3d 329
6th Cir.2021Background
- Tennessee law (Tenn. Code Ann. § 39-15-202(a)–(h)) requires in-person, oral informed-consent disclosures by the performing or referring physician and a 48‑hour waiting period (reduced to 24 hours if a court enjoins 48 hours), effectively forcing two clinic visits except in medical emergencies.
- Plaintiffs (Tennessee abortion providers) sued claiming the waiting‑period provision violates the Fourteenth Amendment (undue burden / Due Process and sex‑stereotype Equal Protection claims); the district court held the waiting period (48 or 24 hours) unconstitutional and entered a permanent injunction (did not decide Equal Protection claim).
- The State appealed and moved to stay the injunction pending appeal; the district court denied the stay and the State renewed the stay motion in the Sixth Circuit.
- The Sixth Circuit panel reviewed the stay factors (Nken) and focused on likelihood of success on the merits, noting the district court’s unchallenged factual findings about logistical, financial, and delay-related medical harms to patients.
- The panel denied the stay, concluding Defendants had not shown a strong likelihood of success on appeal because (a) the district court’s factual findings are unchallenged and (b) those findings likely establish an undue burden under either the Whole Woman’s Health balancing approach or the narrower Chief Justice Roberts approach endorsed in EMW.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stay pending appeal | Injunction should remain; staying would impose harm on patients and public interest favors preventing enforcement of likely‑unconstitutional law | State seeks stay arguing likelihood of success on appeal under Casey/EMW and June Medical, so injunction should be paused | Stay denied — State failed to show likelihood of success; other Nken factors favor denial |
| Proper undue‑burden test | Whole Woman’s Health balancing (weigh burdens vs benefits) is appropriate | EMW/June Medical (Roberts concurrence) controls; courts must defer to legislature on benefits and not perform balancing | Even if district court used balancing, remand unnecessary: district court’s factual findings permit de novo legal review and likely produce the same outcome under either test |
| Whether waiting period is an undue burden on the merits | Waiting period imposes substantial, often insurmountable logistical and financial barriers, causes delays that increase medical risk and cost, and thus is an undue burden | Casey and Sixth Circuit precedent uphold similar waiting periods; record here insufficient to show substantial obstacle or clear error in district court’s findings | Panel likely to affirm district court’s conclusion: unchallenged findings show burdens sufficient to constitute an undue burden under Casey formulations |
| Facial invalidity / “large fraction” test | Waiting period burdens a large fraction (district court found 60–80% low‑income affected and alternatively 95% who are certain) so the statute is facially invalid | State says large‑fraction not met (many still obtain abortions; numerator/denominator mischaracterized) | Panel agrees with district court that large‑fraction test is satisfied (even using narrower denominators), supporting injunction |
Key Cases Cited
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality announced undue‑burden test and articulated “large fraction”/waiting‑period analysis)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Supreme Court applied benefit‑versus‑burden balancing in undue‑burden analysis)
- June Medical Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (fractured decision; Chief Justice Roberts’ concurrence rejected balancing as controlling in this context)
- EMW Women’s Surgical Ctr. v. Friedlander, 978 F.3d 418 (6th Cir. 2020) (Sixth Circuit panel applied Marks to June Medical and endorsed Roberts’ approach; held benefits‑burden balancing not controlling)
- Nken v. Holder, 556 U.S. 418 (2009) (stay‑pending‑appeal factors: likelihood of success, irreparable harm, injury to others, public interest)
- Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006) (interpreting Casey’s “large fraction” concept as conceptual rather than strictly mathematical)
- Marks v. United States, 430 U.S. 188 (1977) (governs which opinion controls when the Supreme Court issues fractured decisions)