Bristol Reg'l Women's Center v. Herbert Slatery, IIIBristol Reg'l Women's Center v. Herbert Slatery, III
*1 Before: SUTTON, Chief Judge; MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges. _________________
COUNSEL ARGUED EN BANC: Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Autumn Katz, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellees. ON BRIEF AND SUPPLEMENTAL BRIEF: Sarah K. Campbell, Mark Alexander Carver, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Autumn Katz, Michelle Moriarty, Rabia Muqaddam, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, Maithreyi Ratakonda, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, Scott Tift, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, Michael J. Dell, Jason M. Moff, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York for Appellees. ON AMICUS BRIEF: Elizabeth B. Murrill, OFFICE OF THE LOUISIANA ATTORNEY GENERAL, Baton Rouge, Louisiana, Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Sarah A. Hunger, OFFICE OF THE ILLINOIS ATTORNEY GENERAL, Chicago, Illinois, Jessica L. Ellsworth, HOGAN LOVELLS US LLP, Washington, D.C., Kimberly A. Parker, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Andrew M. Leblanc, MILBANK LLP, Washington, D.C., Michael L. Rosenthal, COVINGTON & BURLING LLP, Washington, D.C., Sarah Mac Dougall, COVINGTON & BURLING LLP, New York, New York, Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas for Amici Curiae.
THAPAR, J., delivered the opinion of the court in which SUTTON, C.J., GRIFFIN, KETHLEDGE, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, JJ., joined. BUSH, J. (pp. 14–16), delivered a separate concurring opinion in which GRIFFIN, J., joined. MOORE, J. (pp. 17–56), delivered a separate dissenting opinion in which COLE, CLAY, GIBBONS, WHITE, STRANCH, and DONALD, JJ., joined. GIBBONS, J. (pg. 57), delivered a separate dissenting opinion.
_________________
OPINION
_________________ THAPAR, Circuit Judge. Before making life’s big decisions, it is often wise to take time to reflect. The people of Tennessee believed that having an abortion was one of those decisions. So they passed a law requiring a waiting period of 48 hours. Although the Supreme Court upheld a similar 24-hour waiting period in Planned Parenthood v. Casey , the district court said that Tennessee’s waiting period violates a woman’s right to have an abortion. We disagree and reverse.
I.
Tennessee’s waiting-period law resulted from a decades-long democratic process.
In 1978, Tennessee enacted a 48-hour waiting period for abortions. 1978 Tenn. Pub. Acts,
ch. 847, § 1. But a federal district court enjoined the law based on precedent that predated
.
See Planned Parenthood of Memphis v. Alexander
, No. 78-2310, 1981 U.S. Dist. LEXIS
18617, at *28–29 (W.D. Tenn. Mar. 23, 1981). Then, after
Casey
was decided, the Tennessee
Supreme Court held that the waiting period violated Tennessee’s constitution, even if it did not
violate the Federal Constitution.
Planned Parenthood of Middle Tenn. v. Sundquist
, 38 S.W.3d
1, 25 (Tenn. 2000). In response, Tennessee voters amended the State’s constitution to clarify
that it does not protect the right to an abortion. Tenn. Const. art. I, § 36;
see also George v.
Hargett
,
After approving this constitutional amendment, the Tennessee legislature enacted a law restoring the 48-hour waiting period. That law requires doctors to provide women with certain information at least 48 hours before performing an abortion (except in cases of medical emergency). Tenn. Code Ann. § 39-15-202(a)–(h) (2019). This information includes the age of the unborn child, the alternatives to abortion, and the medical risks of abortion and pregnancy. Id. The law also provides that a 24-hour waiting period will take effect if a court enjoins the 48-hour waiting period. § (d)(2).
A group of abortion providers then sued. The providers alleged that Tennessee’s waiting period burdened access to abortion and was facially unconstitutional. Yet they did not seek a preliminary injunction, and the law went into effect in July 2015. For five years, the law remained in force. And for five years, women continued to obtain abortions in Tennessee: Abortion rates remained above 10,000 per year both before and after passage of the law.
Four years after the providers filed their suit, the district court held a bench trial. It heard
testimony from witnesses, reviewed exhibits, and issued a published opinion. In that opinion, the
district court balanced the law’s benefits against its alleged burdens and concluded that the law
was unconstitutional because it unduly burdened access to abortion.
Adams & Boyle, P.C. v.
Slatery
,
Tennessee sought a stay pending appeal from the district court. It pointed out that the
district court’s decision conflicted with Supreme Court and Sixth Circuit precedent governing
waiting periods.
Planned Parenthood of Se. Pa. v. Casey
,
Tennessee next moved for initial hearing en banc and sought a stay pending appeal from the en banc court. We granted both motions and now reverse on the merits.
II.
We start by explaining the relevant legal standard. A law regulating abortion is facially
valid if it meets two requirements: (1) the law is “reasonably related to a legitimate state
interest,” and (2) the law does not place a “substantial obstacle” in the path of a large fraction of
women “seeking an abortion of a nonviable fetus.”
Preterm-Cleveland v. McCloud
, 994 F.3d
512, 525 (6th Cir. 2021) (en banc) (quoting
EMW
,
The first requirement is met whenever the state has a rational basis to act.
Gonzales v.
Carhart
, 550 U.S. 124, 158 (2007). Under the rational basis test, “legislative choice is not
subject to courtroom fact-finding and may be based on rational speculation unsupported by
evidence or empirical data.”
FCC v. Beach Commc’ns, Inc.
,
If this standard appears “highly deferential,” that’s because it is.
EMW
,
When there is a rational basis for the law, courts must ask the second question: Does the
law place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus”?
Preterm-Cleveland
, 994 F.3d at 525 (citation omitted);
see also June Medical Servs.
,
III.
Having set forth the law, we now turn to the central issue in this case, which is whether Tennessee’s 48-hour waiting period is facially constitutional. We answer that question by applying the two-step framework discussed above: (1) Did Tennessee have a rational basis for enacting the waiting period? And (2) if so, does the regulation place a substantial obstacle in the path of a large fraction of women seeking previability abortions in Tennessee?
A.
Rational Basis.
In
Casey
, the Supreme Court held that abortion waiting periods are
rationally related to at least two legitimate state interests. First, they are “a reasonable measure
to implement the State’s interest in protecting the life of the unborn.”
Casey
,
In response, the plaintiffs argue that the factual record here does not support Tennessee’s
rationale. Appellees’ Br. at 47–48;
see also
Dissenting Op. at 51–54. But that turns the rational
basis standard on its head. The government “has no obligation to produce evidence to sustain
the rationality of its action.”
TriHealth
, 430 F.3d at 790. Nor are its rationales “subject to
courtroom fact-finding” or a clash of proofs at trial.
Beach Commc’ns.
,
Here, the Supreme Court has already told us that abortion waiting periods clear this very
low bar. “The idea that important decisions will be more informed and deliberate if they follow
some period of reflection [is not] unreasonable, particularly where the statute directs that
important information become part of the background of the decision.” ,
B.
Substantial Obstacle. Since Tennessee had a rational basis to act, the next question we must ask is whether the 48-hour waiting period poses a substantial obstacle for a large fraction of women seeking previability abortions in Tennessee. The obstacle must be significant—burdens and inconveniences are simply not enough. Preterm-Cleveland , 994 F.3d at 525 (citation omitted). And because the plaintiffs are bringing a facial challenge, they must show that such an obstacle exists for a large fraction of the women for whom the regulation is relevant (that is, all women seeking previability abortions in Tennessee).
To date, we have never explained what exactly constitutes a large fraction. We have said
that the test is “more conceptual than mathematical.”
Taft
,
Precedent compels this result. In , the Supreme Court held that Pennsylvania’s 24-hour abortion waiting period was not an undue burden. In doing so, the Court recognized that the law (1) would often cause delays of “much more than a day” given the need to schedule two appointments; (2) would be “particularly burdensome” for “those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others”; (3) might lead to women experiencing additional “harassment” or “hostility”; and (4) would have “the effect of increasing the cost and risk of delay of abortions.” , 505 U.S. at 886 (joint opinion) (cleaned up). Still, the Court held that these findings were not enough to “demonstrate that the waiting period constitutes an undue burden.” Id. This was true even for the women most affected by the law, such as those with low incomes. Id. at 886–87.
After
Casey
, our court held that Ohio’s 24-hour waiting period was constitutional.
Taft
,
In this case, as in others, “the hardships of which plaintiffs complain are generally no
different than those the Court in
Casey
held did not amount to an undue burden.”
Karlin v.
Foust
,
Indeed, the factual findings by the district court in
Casey
are analogous to the district
court’s factual findings here. For example, the district court in
Casey
found that the waiting
period would “result in delays far in excess of 24 hours,” with a majority of women facing delays
of “48 hours to two weeks.”
Planned Parenthood of Se. Pa. v. Casey
,
If there is any distinction between the record in Casey and ours, it is the statistical evidence that women in Tennessee continued to obtain abortions in large numbers after the waiting period took effect. In ’s pre-enforcement challenge, the courts relied on expert testimony predicting the effects of the law. But the Tennessee law had been on the books for five years by the time the plaintiffs sued. And five years of data tell us much more than an expert’s prediction of how the law will play out. It is one thing to predict that the sky will fall tomorrow. It’s quite another thing to maintain that the sky fell five years ago for women seeking abortions when the numbers tell us otherwise: The year before Tennessee enacted the law, its clinics performed 12,373 abortions. CA6 R. 20, Ex. C. And the year after Tennessee enacted the law, its clinics performed 11,235 abortions. , Ex. E. And the next two years also saw abortion numbers in the State hover just under 11,000. [2] So while abortions declined slightly (by about 9%), the law did not keep a large fraction of abortion seekers from obtaining the procedure.
Tennessee also points out that its waning abortion rate tracked broader national trends—a
fact the plaintiffs do not dispute. This suggests that the decline was caused by factors other than
the state’s waiting period. But even if the waiting period were the cause, a moderate reduction in
the number of abortions is consistent with a law designed to “protect[] the life of the unborn.”
,
Though the numbers show that most women who wanted an abortion continued to access abortion services in Tennessee, the district court identified several other hurdles as part of its undue-burden analysis. But as the data show, all fall well short of being a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee.
For example, the district court found that “[a]s gestational age increases, an abortion
becomes . . . riskier for the patient.”
Adams & Boyle
,
Next, the district court found that as a result of the waiting period (and associated delays), some women will miss the cutoff for medication abortions. Adams & Boyle , 494 F. Supp. 3d at 562–63. But the Supreme Court “has not extended constitutional protection to a woman’s preferred method . . . of terminating a pregnancy.” Planned Parenthood Sw. Ohio Region v. DeWine , 696 F.3d 490, 516 (6th Cir. 2012). To the contrary, in Gonzales v. Carhart the Supreme Court held that the government may ban a method of abortion so long as a “commonly used and generally accepted method” of abortion remains available. 550 U.S. at 165–67. Here, no one disputes that surgical abortion—a procedure the plaintiffs contend is “very, very safe”—remains available after the period for obtaining a medication abortion has lapsed. R. 219, Pg. ID 4535.
The dissent claims that surgical abortion is not an adequate alternative, because some women prefer medication abortion. But the only legal authority it cites is a two-Justice dissent from the grant of a stay. Surgical abortion is “commonly used and generally accepted,” precisely what the Court in Gonzales demanded. And Casey also considered these consequences: The district court in that case found that the waiting period would sometimes “push patients into the second trimester of their pregnancy substantially increasing the cost of the procedure itself and making the procedure more dangerous medically.” Casey , 744 F. Supp. at 1352. As in , this change in procedure does not present a substantial obstacle. [3]
The district court also held that Tennessee’s waiting period is “demeaning to women” and “undermines patient autonomy and self-determination.” Adams & Boyle , 494 F. Supp. 3d at 564–65. But whether a law is dignifying or demeaning is a question for legislators, not judges. See Preterm-Cleveland , 994 F.3d at 536 (Sutton, J., concurring) (“The National Constitution permits States to convey their interest in the dignity of all human beings in all manner of ways.”). And more importantly, the district court’s factual findings show these sorts of concerns did not deter a large fraction of women from obtaining abortions in Tennessee.
Finally, the district court found that Tennessee’s waiting-period law “places significant
burdens on the clinics themselves.”
Adams & Boyle
, 494 F. Supp. 3d at 565. But the clinics
have “no constitutional right to perform abortions.”
Planned Parenthood of Greater Ohio v.
Hodges
,
One further note. The plaintiffs suggest at various points that the district court’s
factfinding insulates its undue-burden determination from a hard look on appeal. That is
incorrect. True, we defer to a district court’s factfinding under the clear error standard. But
whether particular facts amount to an undue burden is a question of law that we review de novo.
Memphis Planned Parenthood, Inc. v. Sundquist
,
IV.
After we granted en banc review, we allowed the parties to file simultaneous
supplemental briefs. The plaintiffs claimed in that brief that the law—even if valid on its face—
is unconstitutional as applied to certain groups of women. They identified three groups:
(1) women who will miss the cutoff date for an abortion because of the 48-hour waiting period;
(2) women whose medical conditions increase the risk of delaying the procedure; and (3) women
who are survivors of rape, incest, or intimate partner violence. But the plaintiffs failed to
identify any “discrete and well-defined instances” where women in these groups faced (or were
likely to face) a particular burden because of Tennessee’s waiting period—the foundation for an
as-applied challenge.
See Gonzales
,
Indeed, the law has been in effect for more than five years, and still the plaintiffs have
failed to name a single woman who has suffered an increased burden for any of these three
population in 1992. And as the district court notes elsewhere in its opinion, “the calculation of Pennsylvania
providers [in 1992] also included smaller OB/GYNs or hospitals that performed abortions, which were not included
in the calculation of Tennessee providers.”
Adams & Boyle
,
reasons. None of the plaintiffs’ witnesses could name specific women who could not get an abortion because the waiting period pushed them past the cutoff date. None of the witnesses could identify specific women whose medical conditions caused complications or psychological harm during the waiting period. And none of the witnesses could point to specific women who, due to experiences of rape, incest, or abuse, found the waiting period traumatizing or were prevented from obtaining an abortion. This lack of evidence is fatal to their as-applied challenge. So it too must fail.
* * *
Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.
_________________
CONCURRENCE
_________________ JOHN K. BUSH, Circuit Judge, concurring. Although I concur fully in the majority opinion, one aspect of its reasoning warrants further discussion.
Normally, when a party mounts a facial challenge to the constitutionality of a law, it is
required to show “that the law is unconstitutional in all of its applications.”
Wash. State Grange
v. Wash. State Republican Party
,
What constitutes a large fraction? We have answered that question evasively in the past,
noting that the test is “more conceptual than mathematical,” yet concluding that 12.5 percent is
not enough.
Cincinnati Women’s Servs. v. Taft
,
The majority rightly discerns the glaring weakness of Plaintiffs’ large-fraction analysis:
that in the year after Tennessee implemented the waiting-period law, abortions decreased by only
nine percent. Even assuming that the entire decrease is attributable to the new law, nine percent
is a small fraction, not a large one.
See Taft
,
To make its point, the majority opinion assumes, for purely illustrative purposes, that the entire drop in the abortion rate was the result of some undue burden imposed by the waiting- period law. But it is worth clarifying, for the benefit of future litigants, that courts are not bound by that assumption, as it rests on an unproven premise. The premise is that any drop in the abortion rate resulting from an abortion law is evidence that the law imposes a burden, and that if the drop is drastic enough, resulting in more than “a moderate reduction in the number of abortions,” id. , the law is ipso facto unconstitutional. That is not how the large-fraction analysis works.
To satisfy the large-fraction test, Plaintiffs must show a causal connection between the
decrease in the number of abortions and the substantial obstacle the law supposedly imposes.
See Planned Parenthood v. Casey
, 505 U.S. 833, 895 (1992). That is, Plaintiffs must
differentiate between those women who wanted to get an abortion but were stymied by the
requirements of the law and those who, after attending an informed consent meeting, freely
decided to carry the child to term. So, for instance, a plaintiff might present a
multiple-regression analysis designed to assess whether a decrease in abortions is “an effect
not of the persuasive power of the law, but rather of its burdensome qualities.”
A Woman’s
Choice - E. Side Women’s Clinic v. Newman
, 305 F.3d 684, 714 (7th Cir. 2002) (Wood, J.,
dissenting). As to those for whom the regulation “is an actual rather than an irrelevant
restriction,” the law is invalid only if a large fraction of them are prevented from obtaining an
abortion. ,
Plaintiffs here did not provide anything approaching a rigorous statistical analysis. And despite their contention that the two-appointment requirement imposes forbidding financial and logistical burdens on low-income women, Plaintiffs could not identify a single woman whom the law effectively barred from obtaining an abortion “as surely as if the government ha[d] outlawed abortion in all cases.” EMW , 978 F.3d at 434 (brackets omitted). To the contrary, Plaintiffs’ witnesses candidly acknowledged that abortion clinics do not keep track of women’s reasons for declining to go through with the procedure after attending the informed consent meeting. Indeed, one witness, a Planned Parenthood executive, noted that there are so many potential reasons a woman may decide not to return for an abortion after the waiting period that “[i]t’s impossible to know why patients no-show.” Adams & Boyle, P.C. v. Slatery , 494 F. Supp. 3d 488, 558 (M.D. Tenn. 2020) (alteration in original).
A constitutionally valid law does not become unconstitutional just because it happens to
be effective. Under our caselaw, states are free to enact laws that are rationally related to their
legitimate interest in protecting unborn life, provided those laws do not deter procurement of
abortions in a manner tantamount to a pure ban.
See EMW
,
In other words, for our purposes it does not matter if many or even most women who decline to go through with an abortion after attending the mandatory informed-consent appointment were persuaded to carry the child to term, so long as they were not prevented from getting an abortion had they chosen it. Though it does not matter for our purposes, it matters a great deal to the state, to the mother, and to the unborn child. After all, that is the point of the waiting-period law: to ensure more time for an expectant mother to make an informed decision in the hope that she will choose life.
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. In cases of a constitutional
challenge to a state abortion regulation,
Planned Parenthood of Southeast Pennsylvania v. Casey
tasks courts with determining whether the restriction unduly burdens a woman’s right to choose
to terminate her pregnancy before viability.
Heeding the Court’s charge faithfully, the district court below issued a comprehensive, 136-page opinion setting forth the findings of fact and conclusions of law that supported its holding that Tennessee’s 48-hour waiting period for abortions is an undue burden on the right of Tennessee women to terminate their pregnancies. Considering the waiting period’s practical effects, the district court found “that the statutory waiting period burdens the majority of abortion patients with significant, and often insurmountable, logistical and financial hurdles”—delaying the procedure far more than the nominal 48 hours and increasing the cost of the procedure alone as much as twofold. Adams & Boyle, P.C. v. Slatery , 494 F. Supp. 3d 488, 563 (M.D. Tenn. 2020). Coupled with the costs of attending a second in-person appointment—travel expenses, lost wages, childcare, and more—the district court found that the waiting period put the 60 to 80 percent of women seeking an abortion in Tennessee who qualify as low-income at “grave risk” of sacrificing basic necessities in order to have an abortion. at 564. The district court found, moreover, that the law’s actual delays—as long as four weeks for a second appointment—pushed many women past the cutoff for a medication abortion, forcing them to undergo a more invasive, painful, and costly surgical procedure to terminate their pregnancies. at 562–63. And the district court found that Tennessee’s abortion waiting period causes all of these burdens without benefitting women’s decisional process or mental health; indeed, the district court found that the law instead stigmatizes women by exacerbating harmful stereotypes about women as irrational, emotional, and incapable decisionmakers. at 557–62, 564–65.
Rather than plunge into the vast pool of evidence compiled in the district court (as and the Court’s other abortion cases command) the majority dips a toe and recoils. Speaking vaguely of “inconveniences,” Maj. Op. at 7, “logistical challenges,” id. at 8, and “increased costs,” id. , but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival. See Bristol Reg’l Women’s Ctr., P.C. v. Slatery , 993 F.3d 489, 490–92 (6th Cir. 2021) (en banc) (Moore, J. dissenting from the grant of initial hearing en banc). An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden. I dissent.
I.
I do not share the majority’s antipathy for the factual record, and so I begin with an overview of the evidence compiled over the course of five years of litigation and a four-day bench trial. The record—contrary to the majority’s threadbare insistence—differs materially from the “sparse” record established in , Cincinnati Women’s Servs., Inc. v. Taft , 468 F.3d 361, 372 (6th Cir. 2006), where the Court upheld Pennsylvania’s 24-hour abortion waiting period.
A.
First, some background.
Enacted in 2015, Tennessee Code Annotated § 39-15-202(a)–(h) imposes informational and temporal requirements on women seeking an abortion in Tennessee. These requirements are asserted to “ensure” that the woman’s “consent for an abortion is truly informed consent.” Tenn. Code Ann. § 39-15-202(b). Plaintiffs do not challenge on appeal the statute’s informational component, which requires a physician “orally and in person” to inform the woman seeking an abortion of, inter alia, the fact that she is pregnant, the probable gestational age of the fetus, resources available should the woman choose not to obtain an abortion, and the risks associated with abortion or carrying the fetus to term. Tenn. Code Ann. § 39-15-202(b)–(c). Rather, Plaintiffs challenge the temporal component, a 48-hour waiting period that begins when the woman receives the mandated information. Tenn. Code Ann. § 39-15-202(d)(1). Because the woman must receive the statutorily mandated information in person, the effect of the waiting period is that a woman seeking an abortion in Tennessee must make at least two visits to the clinic where she will receive abortion care. [2]
The vast majority of abortions in Tennessee occur at outpatient clinics, with a minority— less than five percent—taking place in hospitals or individual obstetrician/gynecologist (“OB/GYN”) offices. See R. 222 (Trial Transcript (“T.T.”), Vol. IV, Lefler Test. at 82–83) (Page ID #5291–92). As of October 3, 2019, there were eight abortion providers in Tennessee (excluding hospitals and OB/GYN offices): Bristol Regional Women’s Center (Bristol, TN); Carafem (Mount Juliet, TN, just outside of Nashville); Knoxville Center for Reproductive Health (Knoxville, TN); Memphis Center for Reproductive Health (“Choices”) (Memphis, TN); and four offices of Planned Parenthood of Tennessee and Northern Mississippi (“PPTNM”) (Knoxville, TN, Nashville, TN, and two in Memphis, TN). See Adams & Boyle , 494 F. Supp. 3d at 543–44. [3] As a result of the distribution of Tennessee’s abortion clinics, “[n]inety-six percent of Tennessee counties do not have an abortion clinic, and 63% of women live in a county without an abortion provider.” Id. at 563. Together, Plaintiffs operate six of the eight abortion facilities in Tennessee.
There are two procedures for terminating a pregnancy. The first is a “medication abortion” and involves taking a mifepristone pill at the abortion provider’s office and then taking a second pill, misoprostol, at home, up to 48 hours later. R. 219 (T.T., Vol. I, Wallett Test. at 39) (Page ID #4532). A medication abortion does not require sedation and is similar to the experience of an early miscarriage. Id. at 40 (Page ID #4533). The second is a “surgical abortion” and generally involves an aspiration procedure that facilitates the removal of the contents of the uterus. Id. The procedure becomes more complex, requires “additional skills and equipment,” and may require sedation as the pregnancy progresses. Id. at 40–41 (Page ID #4533–34). For example, a surgical abortion that takes place sixteen or seventeen weeks from the first day of the woman’s last menstrual period (“LMP”) is typically a two-day procedure, requiring the woman to come in on the first day for a medication to “prepare her cervix for the abortion” before returning the next day to undergo the procedure. Id. at 42 (Page ID #4535). Both procedures are “very safe,” but the risks associated with abortion increase with gestational age. See id. at 40–43 (Page ID #4533–36).
Unsurprisingly, women “strongly prefer[]” medication abortions—which are shorter, less invasive, and less painful—over surgical abortions. Id. at 43 (Page ID #4535). However, a medication abortion is available only up to ten weeks LMP in Tennessee. Id. at 39–40 (Page ID #4532–33). In contrast, surgical abortions are available later in the pregnancy, at LMP cutoffs that vary by clinic. For example, PPTNM offers surgical abortions in one of its Memphis locations and its Nashville location up to 19 weeks and six days LMP. at 38, 41–42 (Page ID #4531, 4534–35). Choices, in Memphis, offers surgical abortions up to 15 weeks LMP. R. 219 (T.T., Vol. I, Terrell Test. at 246) (Page ID #4739). Only five of Tennessee’s eight abortion clinics offer surgical abortions, and PPTNM’s Memphis and Nashville locations are the only ones in Tennessee that offer surgical abortions past 15 weeks LMP. See Adams & Boyle , 494 F. Supp. 3d at 562–63. Although the total number of abortions in Tennessee declined between 2013 and 2017, the share of abortions occurring after 10 weeks LMP (i.e., surgical abortions) increased. R. 222 (T.T., Vol. IV, Lefler Test. at 68–71, 74) (Page ID #5277–80, 5283).
B.
At trial, Plaintiffs presented seven affirmative witnesses and other documentary evidence
in support of their argument that Tennessee’s 48-hour abortion waiting period unduly burdens
abortion access in Tennessee. Consistent with
Whole Woman’s Health
,
1.
The first cornerstone of Plaintiffs’ trial strategy was to undermine Tennessee’s statutory rationale for implementing the 48-hour waiting period: ensuring that “consent for an abortion is truly informed consent.” Tenn. Code Ann. § 39-15-202(b). To do so, Plaintiffs presented witnesses with knowledge of the clinics’ informed-consent procedures prior to the enactment of § 39-15-202(a)–(h) and the testimony of Professor Kenneth Goodman, an expert in medical ethics and informed consent from the University of Miami. According to Professor Goodman, informed consent in the medical context generally requires ensuring that (1) the patient is given information about the procedure or treatment, (2) the patient is competent to consent to or refuse treatment, and (3) coercion has not been employed to obtain assent. R. 219 (T.T. Vol. I, Goodman Test. at 169) (Page ID #4662).
Plaintiffs’ fact witnesses testified that their clinics each employed materially similar informed-consent procedures prior to the enactment of § 39-15-202(a)–(h). Dr. Sarah Wallett, formerly the chief medical officer at PPTNM, explained that “[a]s a physician, it’s [her] ethical obligation to make sure patients understand any procedure that they’re undergoing” and that Planned Parenthood’s mission includes ensuring that “patients . . . have all information available to them to make informed choices.” R. 219 (T.T. Vol. I, Wallett Test. at 51) (Page ID #4544). Thus, even prior to the enactment of Tennessee’s waiting-period law, patients would meet for 30 minutes with trained “patient educators” to discuss their options, information about abortion, and available resources like counselling. Id. at 48–49 (Page ID #4541–42). Not only that, but the patient educator would also screen the patient for coercion and would ask whether they were being pressured to have an abortion. Id. at 49–50, 52 (Page ID #4541–42, 4545). After meeting with the patient educator, the patient would meet with her physician to answer any questions, address any concerns, “assure[] that the patient was firm in her choice to have an abortion,” and “confirm informed consent for the procedure and that the patient understood the risks, benefits, and all the alternatives of proceeding.” Id. at 50–51 (Page ID #4543–44). If a patient was unsure about having an abortion, they were encouraged to take their time with the decision and have the procedure at a later time if they chose to. at 59, 70–71 (Page ID #4552, 4563–64).
Dr. Jessica Young, an OB/GYN at PPTNM working primarily at its Nashville and Knoxville clinics, testified that prior to the enactment of § 39-15-202(a)–(h), PPTNM’s Nashville and Knoxville clinics employed a similar procedure to its Memphis clinics, which included screening patients for decisional certainty and possible coercion. R. 220 (T.T., Vol. II, Young Test. at 69) (Page ID #4861). Rebecca Terrell, executive director of Choices, testified that prior to the enactment of § 39-15-202(a)–(h), Choices employed a similar patient intake and counseling procedure to the one at PPTNM’s four clinics. See R. 219 (T.T., Vol. I, Terrell Test. at 254–58) (Page ID #4747–51). According to Terrell, Choices’s “standard practice [was] that if a patient showed any reservation, they didn’t get a procedure that day.” at 261 (Page ID #4754). Finally, Plaintiffs presented deposition testimony from Dr. Wesley T. Adams, who was an OB/GYN at Adams & Boyle, P.C., which is now operated by Bristol Regional Medical Center. Dr. Adams testified that Adams & Boyle followed an informed consent procedure similar to PPTNM and Choices even before Tennessee enacted § 39-15-202(a)–(h). R. 216-1 (Adams Dep. at 35–39) (Page ID #4113–17). Dr. Adams testified that “[a]s soon as we hear[d] that someone d[idn’t] want to [have an abortion], we [would] tell them to leave immediately, and our policy [was] to make them wait at least 24 hours.” Id. at 121–22 (Page ID #4199–4200). Thus, at each of Plaintiffs’ clinics, there were procedures in place to ensure that patients received detailed and accurate information about abortion, were competent to consent to the procedure, and were not being coerced into having an abortion or otherwise unsure about their decision. The clinics’ procedures stayed largely the same after Tennessee enacted its waiting-period requirement (except, of course, that patients were required to come back for a second appointment to undergo their procedure). See, e.g. , R. 219 (T.T., Vol. I, Wallett Test. at 60–61) (Page ID #4553–54).
After reviewing Plaintiffs’ informed-consent procedures, Professor Goodman concluded that the procedures were “adequate and exemplary” prior to the enactment of Tennessee’s waiting-period law, which Professor Goodman concluded “has impeded the consent process.” R. 219 (T.T. Vol. I, Goodman Test. at 197–98) (Page ID #4690–91). In Dr. Goodman’s opinion, § 39-15-202(a)–(h) is unnecessary because Tennessee law already obliged physicians to ensure that their patients gave informed consent for treatment. Id. at 189 (Page ID #4682). He further testified that Tennessee’s waiting-period law undermines patient “autonomy” for patients who “understand and appreciate the risk” by delaying their procedure, which Professor Goodman deemed “insulting and patronizing.” Id. at 161, 181 (Page ID #4654, 4674). In fact, Professor Goodman opined that § 39-15-202(a)–(h) “undermin[es] the very idea of the informed-consent process” by adding procedures and delay that are unnecessary for ensuring informed consent. Id. at 161–62 (Page ID #4654–55). Noting the lack of similar laws for non-abortion procedures, Professor Goodman opined that “[t]here’s nothing ethically distinctive about the role of consent when it comes to abortion.” at 193 (Page ID #4686). Professor Goodman was unaware of “any benefits to delaying medical care to patients who have already provided valid consent.” at 188 (Page ID #4681).
2.
Plaintiffs complemented the evidence undermining the statutory purpose of Tennessee’s 48-hour abortion waiting period with evidence that the law imposes severe burdens upon women seeking an abortion in Tennessee. In particular, Plaintiffs provided evidence proving that the law imposes severe logistical, financial, medical, and psychological burdens, especially upon the vast majority of women seeking an abortion in Tennessee who qualify as low income.
Professor Sheila Katz, a sociologist at the University of Houston, who specializes in gender and poverty, testified that, nationally, 75 percent of women seeking an abortion qualify as low-income. R. 220 (T.T., Vol. II, Katz Test. at 226–27) (Page ID #5018–19). Defining “low- income” as anyone under 200 percent of the federal poverty line, Professor Katz testified that low-income families are “still poor” and struggle “to meet all of the basic needs of the household” such as “adequate and safe housing, pay[ing] all of their utilities, [and] mak[ing] sure the family has nutritious food, healthcare, [and] transportation.” Id. at 215 (Page ID #5007). Whereas unexpected expenses might be inconvenient for others, the expenses associated with an unintended pregnancy upend “the already . . . precarious balance that [low-income women are] trying to maintain to not be evicted, to not have utilities shut off, to make sure the children have food and basic medical needs met.” Id. at 229–30 (Page ID #5021–22). Even an unexpected $50 expense can cause women that qualify as low income to forgo food. Id. at 244 (Page ID #5036). Professor Katz testified that the price of an abortion is compounded by the cost of gas or transportation, lodging, and lost wages, and that, because two-thirds of women seeking abortion in Tennessee are already mothers, they must arrange for childcare, which may add to the cost. Id. at 227–28, 233–43 (Page ID #5019–20, 5025–35). According to Professor Katz, without access to a private vehicle or public transportation, many low-income women have difficulty accessing abortion in Tennessee or must allocate financial resources for travel that they cannot afford. Id. at 229–34 (Page ID #5021–26). Professor Katz testified further that low-income women generally work jobs that do not provide paid time off and that women working these jobs risk losing them (and further damaging their already sensitive financial circumstances) if they request time off because they are “often seen as disposable.” at 242 (Page ID #5034). Summing up her testimony, Professor Katz opined that low-income women may not be able to access abortion at all in Tennessee because of the procedure’s associated costs, and those that could raise the funds did so at “grave risk” to their ability to provide for themselves or their families. at 256–57 (Page ID #5048–49).
The testimony of Dr. Wallett, Dr. Young, Dr. Adams, and Terrell reinforced Dr. Katz’s testimony. Consistent with national numbers, 60 to 80 percent of their patients qualify as low income and struggle to access abortion because of financial and logistical constraints caused by Tennessee’s waiting-period law. See, e.g. , R. 220 (T.T., Vol. II, Young Test. at 91) (Page ID #4883) (60 to 70 percent of patients at PPTNM’s Nashville and Knoxville clinics live close to or below the poverty line); R. 219 (T.T., Vol. I, Terrell Test. at 287–88) (Page ID #4780–81) (Approximately 80 percent of Choices patients fall below 110 percent of the federal poverty line). And each testified that their clinics increased prices for an abortion because of the waiting- period law, which effectively doubled the number of appointments they needed to accommodate, creating a need for additional hours and staffing. For example, Terrell testified that in response to the added appointments caused by the waiting period, Choices has had to increase staffing and take other measures, which has led to the price for an abortion nearly doubling between 2013 and 2019. R. 219 (T.T., Vol. I, Terrell Test. at 275–76) (Page ID #4768–69). These price increases were a “huge barrier” for the predominantly low-income population that Choices serves. Id. at 276 (Page ID #4769); see also R. 219 (T.T., Vol. I, Wallett Test. at 91) (Page ID #4584); R. 216-1 (Adams Dep. at 127–28, 142) (Page ID #4205–06, 4220). Dr. Young testified further that the costs of obtaining an abortion—not just the service itself, but also travel, childcare, and lost wages—are so significant for PPTNM’s low-income patients, that to cover the costs they will “have to make trade-offs, and sometimes that’s a trade-off with food, [or] other bills that they go behind on paying, whether it’s rents or . . . car payments.” R. 220 (T.T., Vol. II, Young Test. at 92–93 (Page ID #4884–85).
Plaintiffs pointed to further burdens, too. Dr. Young testified that the limited number of abortion providers in Tennessee restricted abortion access before Tennessee implemented its waiting-period law, but the law caused further strain because the need for more appointment slots increased wait times for a first appointment at the clinics from under one week to between one and three weeks and wait times of up to four additional weeks for the second appointment. at 90–91, 97–98 (Page ID #4882–83, 4889–90). As a result, Dr. Young witnessed an increase in gestational age for abortions, a decrease in the number of medication abortions, and an increase in second-trimester abortions. at 108–10 (Page ID #4900–02). This increase in surgical and second-trimester abortions was significant because they are riskier and more painful, and because “women with a sexual history of trauma find pelvic exams [for a surgical abortion] traumatizing.” Id. at 61–63, 113 (Page ID #4853–55, 4905). Like Dr. Young, Dr. Wallett testified that since Tennessee enacted its waiting-period law, wait times for appointments at PPTNM’s Memphis clinics increased from about one- to two-weeks to three- to four-weeks, with an additional one- to two-week wait for the second appointment, despite efforts to increase hours and staffing. R. 219 (T.T., Vol. I, Wallett Test. at 72–74) (Page ID #4565–67). These delays caused patients to miss the deadline for a medication abortion, and, in some cases, the clinic’s deadline for a surgical abortion entirely. See id. at 75–76 (Page ID #4567–68). Terrell testified that Tennessee’s 48-hour waiting period has caused some Choices patients to miss Choices’s 15-week LMP deadline for surgical abortions. R. 219 (T.T., Vol. I, Terrell Test. at 288–89) (Page ID #4781–82). For example, between December 1, 2017 and December 31, 2018, Tennessee’s abortion waiting period caused 41 Choices patients to miss the deadline for medication abortions and 14 to miss the deadline for surgical abortions. Id. at 289–90 (Page ID #4782–83). These patients were “incredibly distraught” to have missed the deadlines. Id. at 291–92 (Page ID #4784–85).
On top of the logistical, financial, and medical burdens identified above, Plaintiffs presented evidence of the stigmatic effect of Tennessee’s abortion waiting period by way of Professor Sara McClelland, a professor of psychology and women’s studies at the University of Michigan. Relying on peer-reviewed studies, her own research, and other evidence, Professor McClelland opined that Tennessee’s waiting-period law “exacerbates existing stereotypes about women and . . . contributes to the stigmatization of women.” R. 220 (T.T., Vol. II, McClelland Test. at 177) (Page ID #4969). According to Professor McClelland, the waiting-period law “lend[s] the authority of the law to exacerbate existing stereotypes of women as irrational or overly emotional, and . . . by exacerbating these stereotypes, . . . could both affect how people think about women more broadly, as well as how women think about themselves as incapable of making their own healthcare decisions.” at 178 (Page ID #4970). In Professor McClelland’s opinion, Tennessee’s waiting-period law “causes harm both in that people have increased stereotypes around women as incapable decision-makers, and . . . in that it teaches women to think of themselves as incapable decision-makers.” at 188 (Page ID #4980). “[I]n essence,” Professor McClelland testified, the law tells a woman seeking an abortion “that her own decision of her own healthcare is insufficient,” thereby “demean[ing] her by insisting that she herself is not the arbiter of her own healthcare.” Id. at 188–89 (Page ID #4980–81). According to Professor McClelland, ongoing stigmatization like that caused by Tennessee’s waiting-period law is detrimental to a woman’s physical and psychological health. Id. at 189 (Page ID #4981).
C.
Tennessee’s own trial strategy largely eschewed any attempt to rebut Plaintiffs’ evidence of the burdens imposed by § 39-15-202(a)–(h)’s 48-hour waiting period. Instead, Tennessee sought to rehabilitate the waiting period’s purported benefits with two witnesses who testified that the waiting period improves women’s decisional process and reduces the risk of post- abortion regret and guilt. Plaintiffs presented witnesses of their own in rebuttal.
The first of Tennessee’s witnesses was Professor Priscilla K. Coleman of Bowling Green State University. Professor Coleman, a psychology professor, testified that the waiting period “enables time for women to make [the decision to have an abortion] in a way that is fully informed.” R. 221 (T.T., Vol. III-A, Coleman Test. at 32–33) (Page ID #5111–12). She opined, based on various studies and her own research, that “time is needed to maximize human decisional processes.” Id. at 33 (Page ID #5112). According to Professor Coleman, the stress associated with abortion leads to decisionmaking that “tends to be more emotionally based rather than analytical, rational, thoughtful. We make more hurried decisions when we’re under stress.” Id. at 42 (Page ID #5121). Thus, Professor Coleman testified that it is “important for the woman to get out of that acute stress state and have time to consider her options and what’s best for her as an individual.” at 37 (Page ID #5116). On cross-examination, however, Professor Coleman admitted that she does not “have research experience concerning the [psychological] process that people go through in order to make a decision” and that the studies she relied on did not “directly apply” to waiting periods of 48 hours and that it would require an “inferential leap” to apply the studies she relied on to Tennessee’s 48-hour waiting period. at 81, 107, 110–12 (Page ID #5160, 5186, 5189–91).
Professor Coleman also testified that there was a “high probability of [a woman] feeling
guilty and regretting [her] abortion,” with studies showing that between 25 and 75 percent of
women “feel some level of guilt after undergoing a procedure.”
Id.
at 52–53 (Page ID #5131–
32). But on cross-examination, Professor Coleman acknowledged that her opinion was based in
part upon “a newspaper poll, not a peer-reviewed study, and . . . a survey of anonymous letters
written to a pastor at a church in Florida.”
Adams & Boyle
,
The second witness that Tennessee presented on this theory was Dr. Michael Podraza, an OB/GYN employed by Tenet Medical Partners in Memphis. Dr. Podraza opined that a 48-hour waiting period for abortions “is reasonable because . . . most of the time . . . most surgeries that are of any significance would be done with time between the initial consultation and the surgery.” R. 222 (T.T., Vol. IV, Podraza Test. at 18) (Page ID #5227). He also opined that “there’s a significant regret rate for abortion” which makes it “a good idea for patients to have time to think about that decision before they are taken to surgery.” Id. at 18–19 (Page ID #5227– 28). However, Dr. Podraza conceded that he does not perform abortions because he does not “believe in the morality of abortion” and does not prescribe “artificial contraceptives” or birth control because of his beliefs as a Catholic and because his practice “is based on the kind of a natural mindset of trying to heal the body.” at 13–14 (Page ID #5222–23). Dr. Podraza testified that he has not published articles on abortion or researched regret associated with abortion, and that he would not “perform an abortion if it was necessary to save a woman’s life” because he “believe[s] there’s always another option.” at 34–35, 45–46 (Page ID #5243–44, 5254–55).
In rebuttal, Plaintiffs presented first Professor Jeffrey Huntsinger, a social-psychology professor at Loyola University, Chicago. Professor Huntsinger disagreed with Professor Coleman’s opinion that a 24- or 48-hour waiting period improves decisionmaking with respect to abortion. R. 224 (T.T., Vol. 3-B, Huntsinger Test. at 40–42 (Page ID #5490–92). He opined that Professor Coleman—whom he did not believe to be an expert on decisionmaking— “mischaracterize[d] the literature [that she referenced in testimony] in a way that suggests that she may not actually understand the literature that she’s discussing.” Id. at 17 (Page ID #5467). For example, Professor Huntsinger explained that Professor Coleman testified that emotion negatively impacts decisionmaking even though the literature that she relied on “directly contradict[ed]” her statement. Id. at 17–18 (Page ID #5467–68). Indeed, Professor Huntsinger testified that Professor Coleman’s sources suggest that emotion actually enhances decisionmaking, “leading us to make thoughtful, rational decisions.” Id. Professor Huntsinger testified that, contrary to Professor Coleman’s testimony, a 24- or 48-hour waiting period does not benefit decisionmaking and may lead to “suboptimal decisions.” Id. at 20–21 (Page ID #5470–71).
Plaintiffs also presented Antonia Biggs, Ph.D., in rebuttal, a reproductive-health researcher at the University of California, San Francisco, who testified that the scientific literature contradicts Professor Coleman’s testimony regarding negative mental-health outcomes associated with abortion. R. 222 (T.T., Vol. IV, Biggs Test. at 95) (Page ID #5304). According to Dr. Biggs, “there is a lot of data on this topic” that taken together “clearly shows that abortion does not increase women’s risk of . . . experienc[ing] negative mental health outcomes.” Id. Although Dr. Biggs acknowledged that some women will regret their abortion, regret is uncommon, and there is no evidence suggesting that a waiting period of 24- or 48-hours would reduce the number of women who regret having an abortion. Id. at 95–96, 223–24 (Page ID #5303–04, 5432–33). More broadly, Dr. Biggs testified that the “general consensus within the scientific community” is that abortions do not increase the likelihood of negative mental-health outcomes. at 104 (Page ID #5313). As to Professor Coleman’s claims that women deciding whether to have an abortion have high rates of decisional uncertainty, Biggs pointed to studies finding that 95 percent of women were certain of their decision when they first arrived at a clinic and another study finding that “the vast majority” of women are certain of their decision when they receive abortion care. at 133–34 (Page ID #5342–43). Plaintiffs’ affirmative witnesses bolstered the testimony of Professor Huntsinger and Dr. Biggs, testifying that their patients exhibited decisional certainty between 96 and 99 percent at their first appointments. See, e.g. , R. 219 (T.T., Vol. I, Wallett Test. at 57) (Page ID #4550); R. 220 (T.T., Vol. II, Young Test. at 78– 79) (Page ID #4870–71).
D.
After considering the witnesses’ testimony, the district court found “fully credible” and
gave “great weight” to the testimony of Dr. Wallett, Dr. Young, Dr. Adams, Terrell, Professor
Goodman, Professor McClelland, Professor Katz, Professor Huntsinger, and Dr. Biggs.
Adams
& Boyle
,
Cataloging the evidence of the logistical, financial, and medical hurdles created by Tennessee’s waiting-period law and its stigmatic effects, the district court concluded that the law severely burdened abortion access in Tennessee. Id. at 562–65. As for the waiting period’s benefits, the district court found none, crediting the evidence establishing that the vast majority of women are certain of their decision to have an abortion when they attend their first appointment and noting the lack of evidence suggesting that a waiting period improves decisional certainty for the small minority of women who were not certain at the time of their first appointment. at 557–62. Thus, the district court found that the law’s burdens far outweighed its purported benefits under Whole Woman’s Health , held that Tennessee’s waiting period for abortions unduly burdened abortion access in Tennessee, declared the statute’s waiting period unconstitutional, and permanently enjoined its enforcement. at 565–67, 569–70. [4]
This appeal followed, with a few conspicuous diversions. After the district court denied
Tennessee’s motion for a stay pending appeal, the state sought the same relief in this court. The
assigned panel denied Tennessee’s motion for a stay pending appeal, over a dissent by Judge
Thapar that called for Tennessee to seek en banc review.
Bristol Reg’l Women’s Ctr., P.C. v.
Slatery
, 988 F.3d 329, 344 (6th Cir.) (Thapar, J., dissenting),
vacated
, 994 F.3d 774 (6th Cir.
2021). Tennessee followed Judge Thapar’s advice and filed a petition for initial hearing en banc
or rehearing en banc of their earlier motion for a stay pending appeal. A majority of the en banc
court voted to hear the case initially en banc, superseding initial panel review.
Bristol Reg’l
Women’s Ctr.
,
II.
The best that can be said of this court’s misguided decision to hear this case initially en banc is that it streamlines the analysis somewhat. No longer encumbered by our earlier decisions—whether issued by prior panels or the en banc court—we are now tasked with applying Supreme Court precedent free of the repressive veneer that this court has recently attempted to lacquer over the Court’s decisions. See, e.g. , Preterm-Cleveland v. McCloud , 994 F.3d 512 (6th Cir. 2021) (en banc); EMW Women’s Surgical Ctr., P.S.C. v. Friedlander , 978 F.3d 418 (6th Cir. 2020). Like the majority’s presentation of the facts, the majority’s reading of the Court’s abortion precedent leaves much to be desired. Thus, I find it necessary to offer a more faithful explanation of the Court’s abortion precedent before applying the undue- burden standard to the factual record before us.
A.
In , the Court confirmed the fundamental right of a woman to choose to terminate her pregnancy—to have an abortion—before the point of viability. 505 U.S. at 871 (“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”). Rejecting fervent calls to overrule Roe v. Wade in full, the Court reasoned that matters, like abortion, “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Id. at 851. In part, the Court’s decision not to overturn all of Roe rested on stare decisis grounds, given that Roe had been on the books for nearly twenty years. Casey , 505 U.S. at 854, 869. But the case also unmistakably endorsed the exalted ideals embodied by the Court’s earlier abortion jurisprudence. For one, the Court embraced the premise that “[t]he destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society,” not the State’s “own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.” Id. at 852. Later, the Court explained that although “[t]here was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed,” those views, “of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.” Id. at 896–97. Recognizing that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” the Court reaffirmed the central tenet of Roe . at 856. The decision in is an ode to the abortion right and its centrality to women’s equal participation in all that is life in this country.
In reaffirming the right of a woman to terminate her pregnancy before viability, however, the Court set aside the trimester framework that in Roe it had established for analyzing the constitutionality of abortion restrictions. As the Court explained the trimester framework in ,
almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman’s health, but not to further the State’s interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. at 872. The Court’s primary criticism of the trimester framework was that it failed properly
to account for the State’s “interest in potential life,” an interest that the Court had acknowledged
in
Roe
.
See Casey
,
To the Court, “the undue burden standard [was] the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.” Id. at 876. Setting forth the standard it envisioned, the Court explained that “[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 877. Under the undue-burden standard,
the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.
Id. Thus, “[r]egulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted,” but only “if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id. Likewise, “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Id. at 878. This standard preserves the state’s “interest in potential life” and its interest in protecting the health of the mother, but only to the extent that the restrictions expressing those interests do not run afoul of the undue-burden standard.
In applying its undue-burden standard in , the Court demonstrated the
standard’s fact-intensive design. First, the Court considered Pennsylvania’s “informed consent
requirement,” which imposed a 24-hour waiting period for abortions, beginning once a physician
provided the woman with information regarding the procedure, its health risks, and the
gestational age of the fetus. at 881. Assessing first the statute’s informational component,
the Court held that it did not unduly burden the abortion right, reasoning that “[i]f the
information the State requires to be made available to the woman is truthful and not misleading,
the requirement may be permissible.”
Id.
at 882. But the Court had more difficulty with the
law’s 24-hour waiting period. Accepting that such a waiting period “
[i]n theory
. . . does not
amount to an undue burden,” the Court went on to examine whether the waiting period
amounted to a substantial obstacle “
in practice
” based on the district court’s “findings of fact.”
Id.
at 885–86 (emphases added). Calling it a “closer question,” the Court concluded that the
delay and increased costs associated with the waiting period were “troubling,” but did not
amount to a substantial obstacle, even for those—like poor women or those who lived farthest
from clinics—for whom the burden was the most significant.
Id.
at 886. The Court was careful,
however, to note that its conclusion was based on “the record before [it],”
id.
at 887, a record that
this court has since characterized as “sparse,”
Taft
, 468 F.3d at 372. Notably, upholding
Pennsylvania’s informed-consent requirements meant overruling cases where the Court had
invalidated similar requirements under
Roe
’s trimester framework:
City of Akron v. Akron
Center for Reproductive Health, Inc.
, 462 U.S. 416, 442 (1983), and
Thornburgh v. American
College of Obstetricians & Gynecologists
,
Turning to Pennsylvania’s spousal-consent requirement—which prohibited physicians from performing an abortion “on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion”—the Court held the provision to be unduly burdensome. Id. at 887, 893–95. Cataloging the district court’s “detailed” factual findings on spousal abuse and domestic violence (supported by myriad studies regarding the same), the Court concluded that the requirement amounted to a substantial obstacle for “the significant number of women who fear for their safety and the safety of their children” if they were to inform an abusive husband of their decision to have an abortion. Id. at 888, 893–94. In holding Pennsylvania’s spousal-consent requirement facially invalid, the Court clarified the framework for assessing facial invalidity, which requires courts to determine whether the abortion restriction in question operates as a substantial obstacle “in a large fraction of the cases in which [the restriction] is relevant.” at 895. Under this standard, “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” at 894. In terms of the spousal-notification requirement, the law was irrelevant for those married women who in the absence of the law would still have notified their spouse of their intention to have an abortion but operated as a restriction for those women who would not have so informed their spouse. Id. at 894–95. Without undertaking a detailed mathematical analysis, the Court held that the spousal-notification requirement operated as a substantial obstacle for a large fraction of women in the latter category, sufficient to render the law facially invalid. Id. at 895.
Setting forth its comprehensive framework for addressing the constitutionality of abortion restrictions, the Court acknowledged the limitations of its ruling in Casey : “Even when jurists reason from shared premises, some disagreement is inevitable. That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard.” at 878 (citations omitted). The Court’s prediction proved prescient.
B.
Fast forward some twenty years from and disagreement had arisen as to the proper
application of the undue-burden standard. In
Whole Woman’s Health
, a majority of the Court
remedied that disagreement by clarifying that the undue-burden standard “requires that courts
consider the burdens a law imposes on abortion access together with the benefits those laws
confer.”
The waters muddied again, however, with the Court’s splintered decision in
June Medical
Services L.L.C. v. Russo
,
The Chief Justice concurred, but on stare decisis grounds. Noting the need to “treat like cases alike,” and the almost identical district-court records in Whole Woman’s Health and June Medical , the Chief Justice explained that he could not help but follow Whole Woman’s Health (despite his conviction that the case was wrongly decided):
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago [in Whole Woman’s Health ] invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
June Medical
,
C.
Since
June Medical
, much ink has been spilled—in this court and others—as to the
impact of the Chief Justice’s solo concurrence on ’s undue-burden standard. In this circuit,
a divided panel purported to resolve the issue in
EMW
, 978 F.3d 418, which involved a
Kentucky law requiring that abortion providers obtain transfer and transport agreements with
local hospitals and ambulance services. Bemoaning the “‘vexing task’ of deciding which
opinion controls” when the Supreme Court issues a decision without a majority opinion, the
EMW
majority selected the Chief Justice’s concurrence (and its rejection of a balancing approach
to the undue-burden standard), reasoning that it was the narrower opinion and thus controlling
under the doctrine set forth in
Marks v. United States
,
Six months after the panel decided
EMW
, this court sitting en banc issued a heavily
fractured decision in
Preterm-Cleveland
, with Judge Batchelder’s lead opinion abruptly dubbing
EMW
“the controlling law of our Circuit” without further analysis.
Suffice it to say, I continue to agree with Judge Clay (and our sibling circuits) that
Whole
Woman’s Health
remains controlling law in its articulation of ’s undue-burden standard.
The majority feels differently. Imitating its maneuver in
Preterm-Cleveland
, where the lead
opinion dubbed
EMW
the law of the circuit without analysis, the majority here “set[s] forth the
law” with a handful of citations to
Preterm-Cleveland
. Maj. Op. at 4–5. This time, at least, the
majority deigns—albeit it in a cursory footnote—to “adopt [the] thorough analysis” of
EMW
as
its own. Maj. Op. at 4 n.1. To be sure, that is better than nothing.
See Preterm-Cleveland
,
According to the majority, because both the joint opinion in
Casey
and the Chief Justice’s
opinion in
June Medical
invoke stare decisis, and no one contests that
Casey
“adjusted” the
standard for analyzing abortion restrictions, there should be no difficulty concluding that the
Chief Justice did the same in
June Medical
. Maj. Op. at 4 n.1. The majority’s superficial
analysis misses the point. In
June Medical
, the Court invalidated a law nearly identical to the
one that the Court had invalidated in
Whole Woman’s Health
and did so on an essentially
identical factual record. It was unnecessary for the Chief Justice to “adjust” the applicable
standard because that standard produced the very outcome that the Chief Justice endorsed. His
criticism of
Whole Woman’s Health
was thus dicta; all that was necessary to the Chief Justice’s
vote to invalidate the Louisiana law at issue was a straightforward application of stare decisis—
treating “like cases alike,” to use the Chief Justice’s turn of phrase.
June Medical
, 140 S. Ct. at
2134, 2141 (Roberts, C.J., concurring in the judgment);
see Preterm-Cleveland
,
This distinction between Casey and June Medical makes all the difference. True, the Court invoked stare decisis to uphold the central tenet of Roe —a woman’s right to choose to terminate her pregnancy before viability—but that is where its reliance on stare decisis ended. , 505 U.S. at 854, 869. For the Court to uphold a law that would be invalid under preexisting precedent, it must exceed the bounds of stare decisis, overrule the prior case(s), and announce the standard that explained the changed outcome. Put in terms of , the Court could not uphold Pennsylvania’s informed-consent and waiting-period laws consistent with Akron and Thornburgh or the trimester framework that those cases applied, so the Court could hold as it did only by overruling those cases and announcing its new undue-burden standard. The same is not true of the Chief Justice’s position in June Medical ; he could (and did) vote to invalidate the Louisiana law at issue consistent with Whole Woman’s Health —no adjustments needed. Thus, there is nothing inconsistent about following Casey insofar as it announced a new framework for analyzing abortion restrictions but treating the Chief Justice’s criticism in June Medical of the Whole Woman’s Health standard as the dicta that it is. In Casey , the new standard was necessary; in June Medical , it was not.
As dicta, the Chief Justice’s reasoning in his solo concurrence could not overrule Whole Woman’s Health . That being the case, I maintain that the articulation of the undue-burden standard in Whole Woman’s Health is the one that should be applied to constitutional challenges to abortion restrictions. The majority’s willingness to hold otherwise is contrary to reason and yet another testament to the perils of its perfunctory analysis. As I shall now explain, however, the issue is of limited consequence here because I would hold Tennessee’s abortion waiting period facially invalid under either standard.
III.
A.
Despite my conviction that the Chief Justice’s articulation of
Casey
’s undue-burden
standard does not displace
Whole Woman’s Health
, I will begin as the majority does. The Chief
Justice’s undue-burden standard involves two inquiries. First, is the law “‘reasonably related’ to
a legitimate state interest”?
June Medical
,
At the outset, it is wrong to say or suggest that
Casey
categorically approved of all
waiting-period laws when it upheld Pennsylvania’s.
See
Appellant Br. at 2 (arguing that the
result of this appeal is “preordain[ed]” by );
see also Bristol Reg’l Women’s Ctr.
, 988 F.3d
at 344 (Thapar, J., dissenting) (“Since , no federal appellate court has successfully struck
down an abortion waiting period. Why? Because the Supreme Court says that waiting periods
are constitutional.”).
[5]
As explained above, the Court was careful in
Casey
to note that its
conclusion was based on “the record before [it].” at 887. The Court’s record-before-us
limitation left the door open for challenges to similar waiting periods in cases—like this one—
with more substantial factual records. Don’t take my word for it, though; instead ask Justice
Souter, one of
Casey
’s three authors. Soon after
Casey
, he explained that “litigants are free to
challenge similar restrictions [to those at issue in
Casey
] in other jurisdictions” given the Court’s
insistence that its conclusions were based on “‘the record’ before [it].”
Planned Parenthood of
Se. Pa. v. Casey
, 510 U.S. 1309, 1312–13 (1994) (Souter, J., in chambers) (quoting
Casey
,
The Seventh Circuit put it well in explaining the reason why Justices Souter and O’Connor must be correct:
[N]ot all states are like Pennsylvania. States differ in the number of physicians who perform abortions, the number of abortion facilities, the distances women must travel in order to reach an abortion facility, and the average income of women seeking abortions. While a twenty-four hour waiting period that requires two trips to an abortion provider has been found not to impose an undue burden on Pennsylvania women based on the circumstances of that state at the time the Court decided Casey, a similar provision in another state’s abortion statute could well be found to impose an undue burden on women in that state depending on the interplay of factors such as those identified above.
Karlin v. Foust
,
Substantial Delays
. By doubling the number of in-person appointments that abortion
clinics in Tennessee needed to accommodate because of the 48-hour waiting period, § 39-15-
202(a)–(h) left Tennessee’s abortion clinics scrambling. Even as the clinics increased hours and
staffing, they were unable to supply enough appointments for women to be seen timely for their
first appointments or be seen in 48 hours for their second appointment.
See, e.g.
,
Adams &
Boyle
,
The result? With Tennessee’s waiting period in place, women seeking an abortion face
significant delays in scheduling their first appointment (the one at which a physician would
provide them with the information mandated by § 39-15-202(a)–(h)) and delays of up to four
weeks for their second appointments (where they would undergo the procedure).
Adams
& Boyle
, 494 F. Supp. 3d at 562. The delays found by the district court here are far more
significant than those in , where the district court found that Pennsylvania’s 24-hour
waiting period would result in delays “rang[ing] from 48 hours to two weeks” and did not make
findings as to any delays that would occur for initial appointments. ,
Medical Implications
. Burdensome on their own, the delays caused by Tennessee’s
abortion waiting period have significant implications for the availability of abortion in
Tennessee, especially the availability of medication abortions. Medication abortions are
available only through ten weeks LMP, and most women do not even learn that they are pregnant
until they are between four and ten weeks LMP.
Adams & Boyle
,
No matter, says the majority: “Here, no one disputes that surgical abortion . . . remains
available after the period for obtaining a medication abortion has lapsed.” Maj. Op. at 10.
“What a callous response.”
FDA v. Am. Coll. of Obstetricians & Gynecologists
,
Casey
itself does not speak to regulations that preclude the availability of medication
abortion. Why? Because the procedure was unavailable until the FDA approved mifepristone in
2000.
See Am. Coll. of Obstetricians & Gynecologists v. FDA
,
In sum, the impact that Tennessee’s waiting-period law has on the availability of medication abortion is a significant consideration that has no corollary in (or the Court’s other abortion decisions). Add to that the district court’s finding that the waiting period caused some women to miss the deadline for an abortion entirely, Adams & Boyle , 494 F. Supp. 3d at 562–63, [7] and the district court properly found that the medical implications of Tennessee’s abortion waiting period support the conclusion that the law is unduly burdensome.
Logistical and Financial Hurdles
. The district court found that the substantial delays
caused by Tennessee’s abortion waiting period “burden[] the majority of abortion patients with
significant, and often insurmountable, logistical and financial hurdles.”
Adams & Boyle
, 494 F.
Supp. 3d at 563. Logistically, the law requires women seeking an abortion in Tennessee to come
to a second appointment at an abortion clinic that is often miles away from their home.
See, e.g.
,
Adams & Boyle
,
An example puts the financial difficulty in perspective. The district court found that the “large majority of plaintiffs’ patients live in poverty” without “the funds or health insurance to cover the procedure,” and that “the overwhelming majority of women seeking an abortion [in Tennessee] . . . are already mothers and are either poor or near low-income.” (quoting the trial testimony of Professor Katz) (second alteration original). For a single mother of one, the poverty line sits at approximately $17,000 per year. See id. at 527 n.30. The cost of a surgical abortion is approximately $900, meaning that, as a result of § 39-15-202(a)–(h), this single mother would have to spend almost her entire monthly income to receive the procedure, and that does not even account for the travel, childcare, and other expenses that she would incur to attend two in-person appointments. See id. at 513 & n.20. The additional burdens and expenses caused by the statutory waiting period could place the abortion process well out of reach. Indeed, crediting the testimony of Professor Katz, the district court found that under Tennessee’s abortion regime the significant and unexpected costs of an abortion put low-income women and their families at “grave risk” of having to sacrifice necessities like food, housing, and healthcare. at 528, 531, 564.
The majority asserts that the district court’s factual findings here “mirror” those from
Casey
. Maj. Op. at 8. That is simply untrue. While the district court in
Casey
suggested that
Pennsylvania’s waiting-period law would increase the cost of an abortion for women pushed into
their second trimester, it failed to quantify that increase, leaving its severity unknown. 744 F.
Supp. at 1352. In contrast, the district court here found that the cost of an abortion doubled in
some cases under Tennessee’s waiting-period law, identifying the specific increases attributable
to the law.
Adams & Boyle
, 494 F. Supp. 3d at 513–14 & n.20. Similarly, while the district
court in found that “[t]he costs incident to obtaining an abortion . . . [would] be greater if
[Pennsylvania’s] 24-hour waiting period were to go into effect,” it failed to make findings
quantifying that burden or explaining the impact those added costs would have on women
seeking an abortion.
In
Casey
, the Court expressly acknowledged that “at some point increased cost could
become a substantial obstacle,” but reasoned that “there is no such showing on the record before
[it].”
Stigma
. On top of these financial, logistical, and medical hurdles, the district court found
that “the mandatory waiting period is also gratuitously demeaning to women who have decided
to have an abortion.”
Adams & Boyle
,
The majority’s insistence that “whether a law is dignified or demeaning is a question for
legislators, not judges,” Maj. Op. at 11, cannot be reconciled with . As the Court
explained: “It is conventional constitutional doctrine that where reasonable people disagree the
government can adopt one position or the other. That theorem, however, assumes a state of
affairs in which the choice does not intrude upon a protected liberty.” ,
[o]ur law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Id. at 851 (internal citation omitted). In blindly deferring to Tennessee’s will without regard for the record, the majority has conceded that it has no interest in applying Casey faithfully. A law that has been proven to perpetuate harmful stereotypes about women is incompatible with Casey, a decision designed to further “[t]he ability of women to participate equally in the economic and social life of the Nation” by “facilitat[ing] . . . their ability to control their reproductive lives.” at 856.
***
Together, the obstacles identified by the district court are more than substantial enough to
make Tennessee’s abortion waiting period unduly burdensome, at least for the 60 to 80 percent
of women seeking an abortion in Tennessee who qualify as low income. The record here speaks
to considerations absent in
Casey
—the availability of medication abortions and the law’s
stigmatizing effect—and evidences substantially more severe financial and logistical obstacles
than those in . Those financial and logistical obstacles mirror (if not surpass) those in
Whole Woman’s Health
, where an admitting-privileges law led to “fewer doctors, longer waiting
times, and increased crowding,” while also significantly increasing the amount of travel time
needed to get to an abortion facility.
Apart from its attempt to compare the record here to that established in
Casey
—an
argument that I have dealt with at length already—the majority concludes that Plaintiffs’ facial
challenge fails “[b]ecause the statistical evidence shows that most women were not prevented
from obtaining abortions in Tennessee,” pointing to the modest decline in abortions since 2015.
Maj. Op. at 9. The majority’s analysis on this point demonstrates its fundamental
misunderstanding of
Casey
, which sweeps more broadly than laws that effectuate a practical ban
on abortions. The Court made this clear in
Whole Woman’s Health
, where it invalidated a Texas
admitting-privileges law that—like the waiting-period law at issue here—imposed severe
financial and logistical burdens upon women seeking an abortion.
B.
My conclusion that Tennessee’s 48-hour waiting period for abortions is facially invalid is
even more clear when applying the undue-burden standard as the majority of the Court
articulated it in
Whole Woman’s Health
. That case reads
Casey
to “require[] that courts consider
the burdens a law imposes on abortion access together with the benefits those laws confer,” and
balance those considerations to determine whether the law unduly burdens the right to an
abortion.
On appeal, Tennessee reasserts two purported benefits that it argued before the district
court: (1) “persuading women to choose life”; and (2) “the benefits the law provides women.”
Reply Br. at 24–25;
see Adams & Boyle
,
As for Tennessee’s first “benefit,” the State failed to establish that the waiting period persuaded some Tennessee women to continue with their pregnancies. Although Plaintiffs’ witnesses acknowledged that there were women who did not come back for a second appointment after the waiting period’s enactment, there was no evidence to suggest that those women would have obtained an abortion without the waiting period. See Adams & Boyle , 494 F. Supp. 3d at 557–62. For one thing, there was not credible evidence connecting the “no shows” to a change in heart caused by the waiting-period law as opposed to other possible reasons for not attending the second appointment such as a miscarriage or logistical burdens caused by the waiting period. See id. at 558. More importantly, however, the evidence suggested that a woman who changed her mind between her first and second appointment was unlikely to have obtained an abortion before the enactment of Tennessee’s waiting-period law, such that the law did not have a demonstrable impact on women’s choice to have an abortion. See id. Indeed, prior to the waiting period’s enactment, Plaintiffs’ witnesses described internal policies that prevented a woman who expressed uncertainty about whether to have an abortion from having the procedure at her first appointment, and evidence that the vast majority of women who received an abortion—as many as 99 percent—were certain in their decision. See, e.g. , R. 220 (T.T., Vol. II, Young Test. at 78–79) (Page ID #4870–71). As Dr. Young explained, there was a slight uptick in decisional uncertainty at the first appointment after the waiting period became effective, but the uptick was attributable to the fact that women who would not have previously scheduled a first appointment until they were certain of their choice did so in order to account for the delayed availability of abortion with the law in place. See id. Thus, there is minimal, if any, evidence suggesting that Tennessee’s abortion waiting period appreciably benefits the state’s interest in fetal life, and the district court did not err in finding that Tennessee failed to establish that the law “advances the asserted state interest of protecting fetal life.” Adams & Boyle , 494 F. Supp. 3d at 557. [11]
Tennessee’s second “benefit”—the wellbeing of the mother—likewise lacks evidentiary
support. This argument rested primarily on the assertion that the law would prevent women from
having an abortion that they would later come to regret. The evidence, however, established
“that post-abortion regret is uncommon.”
Adams & Boyle
,
[D]efendants point to Dr. Coleman’s testimony that whether to have an abortion is a stressful and emotional decision; that stress and emotions compromise decision- making and result in more “emotionally based,” “hurried,” and “less rational” decisions; that short time limits hinder decision-making; and that abortion is associated with negative mental health outcomes. Dr. Coleman claims that between 25% and 75% of women “feel some level of guilt” after the procedure, which may lead to feelings of regret, and that between 25% and 50% of women experience decisional ambivalence or distress, which she identified as a risk factor for poor post-abortion adjustment. She opined that the statute at issue is beneficial because giving women more time to evaluate the state-mandated information and to consider their options allows them to make “a good decision” and reduces the likelihood of adverse consequences.
The Court rejects these opinions because they are flatly contradicted by the credible record evidence and are supported only by studies (including her own) which, as plaintiffs’ experts showed, are irrelevant or deeply flawed and deserve no serious consideration. Prior to the passage of the statute, all of plaintiffs’ patients went through an extensive and individualized informed consent process. Patients did not have only five or ten minutes to make a decision, as Dr. Coleman contends, because they began considering their options long before they arrived at the clinic and plaintiffs gave them as much time as they needed to make a decision (in addition to the numerous hours spent at the clinic). Plaintiffs’ experts testified that based on their electronic health records, experience, and research, abortion patients had very high levels of decisional certainty both before and after § 39-15-202(a)-(h)’s enactment. There is no indication in this record, or in the legislative history, that prior to § 39-15-202(a)-(h) taking effect abortion patients lacked the information or time necessary to make an informed, voluntary, and uncoerced decision. Requiring patients to take additional time confers no benefit because at least 95% of women are already confident in their decisions when they attend an appointment with an abortion provider.
Adams & Boyle
,
The severe burdens imposed by Tennessee’s 48-hour waiting period plainly outweigh the law’s nonexistent benefits, and this is fatal to Tennessee’s defense of its 48-hour waiting period under Whole Woman’s Health . Alone, the burdens imposed by the law are substantial. Without any benefit, they are indefensible. Thus, under either of the available articulations of the undue-burden standard, I would hold the waiting period of § 39-15-202(a)–(h) to be facially invalid and affirm the judgment of the district court.
IV.
We judges enjoy a great many privileges. Life tenure and compensation that “shall not be diminished,” U.S. Const. art. III, § 1, make the halls of justice quite comfortable for those of us in robes. But the record in this abortion case is a stark reminder that a great many of the individuals who come through our courthouse doors—not to mention those who never have but feel the brunt of our decisions in their everyday lives—do not share in the luxuries we may take for granted. As the record here shows, most women in Tennessee—where somewhere between 60 to 80 percent of women seeking an abortion qualify as low income—do not have the privilege to rest their decision to terminate a pregnancy on moral and spiritual considerations alone. Added to their calculus are more quotidian (but often no less weighty) considerations, such as the cost of the procedure, lost wages, childcare, and the logistics of getting to an abortion clinic in another city without a car or reliable public transportation. The comforts of Article III largely insulate us judges from similar concerns in our own lives, making it all the more important for us to take these concerns seriously—to dignify the lived experiences of the persons whom we impact—when deciding the cases before us.
In this dissent, I have endeavored to do just that. Like the district court before me, I have catalogued the logistical, financial, medical, and psychological obstacles proven at trial to be caused by Tennessee’s 48-hour abortion waiting period and conducted the fact-intensive inquiry that precedent—and common decency—compel. That (necessarily lengthy) inquiry reveals the detail that the majority refuses to acknowledge. Tennessee’s waiting-period law puts low- income Tennessee women at real risk of having to sacrifice necessities like food, housing, and healthcare to obtain an abortion. It forces women who would otherwise qualify for noninvasive medication abortions to endure more invasive, painful, and, for some, traumatic surgical abortions. It stigmatizes women by feeding harmful stereotypes about their decisionmaking. And it does all this while providing absolutely no benefit—there is no evidence whatsoever that a waiting period improves decisional certainty or causes a woman not to have an abortion that she would have regretted. The law before us today is nothing if not unduly burdensome; it cannot be reconciled with Casey .
Casey
is a fitting place to end. There, the Court recognized what the majority here does
not: that “[t]he ability of women to participate equally in the economic and social life of the
Nation has been facilitated by their ability to control their reproductive lives.”
I dissent.
_________________
DISSENT
_________________ JULIA SMITH GIBBONS, Circuit Judge, dissenting. I concur in full in Judge Moore’s dissent. I write separately and briefly only to emphasize the determinative reason for my dissent.
Facts matter. That premise applies in abortion cases, just as it does in other contexts. Judge Moore’s opinion ably sets forth the pertinent factual findings of the district court, which are well-supported by the record and which distinguish this case from . See Moore Dissenting Op. at 42–51. The majority opinion treats these findings only at a high level of generality, an approach that obscures both the specificity and strength of the evidence presented by plaintiffs and the absence of meaningful response by the state. Ultimately, the majority’s inattention to the record enables a generic result that fits this waiting period within and ignores the undue burden on Tennessee’s low-income women and women who experience intimate partner violence. For this reason, I dissent.
Notes
[1]
The panel majority in
EMW
ably analyzed the Supreme Court’s decision in
June Medical
and reasoned
that the Chief Justice’s concurrence is the “holding of the Court” under
Marks v. United States
,
[2] Even if the waiting period did reduce the number of abortions, Judge Bush thoughtfully points out that plaintiffs would need to show that the waiting period posed a substantial obstacle to those women who still wanted an abortion. Not those who reflected on the choice and chose to have a child.
[3]
The plaintiffs also argue that delays will cause some women to miss the cutoff for obtaining an abortion
entirely. But since the plaintiffs never suggest that this is true for a large fraction of the women seeking an abortion,
this argument is a nonstarter.
See Preterm-Cleveland
,
[4]
The district court and the dissent also argue that
Casey
is distinguishable because Pennsylvania had more
abortion clinics when
Casey
was decided than Tennessee does today.
Adams & Boyle
,
[1] Citations to in this opinion are to the controlling joint opinion unless otherwise indicated.
[2]
The statute’s requirements apply to all abortions in Tennessee, except in cases of medical emergency that
prevent compliance.
See
Tenn. Code Ann. § 39-15-202(a)–(d). The statute further provides that the waiting period
is to become 24 hours in the event that a court holds the 48-hour waiting period unconstitutional. at § 39-15-
202(d)(2). The district court concluded that the waiting period is unconstitutional whether 24 or 48 hours,
see Adams & Boyle
,
[3] PPTNM was formed in 2018 when Planned Parenthood Greater Memphis Region (“PPGMR”) merged with Planned Parenthood of Middle and East Tennessee (“PPMET”). R. 219 (T.T., Vol. I, Wallett Test. at 32–33) (Page ID #4525–26). Prior to the merger, PPGMR operated the two Memphis clinics now run by PPTNM and PPMET operated the Knoxville and Nashville clinics now run by PPTNM. For ease of reference, I will refer to these clinics as part of PPTNM, even when referring to evidence regarding the operation of the clinics prior to the merger.
[4] Plaintiffs brought two claims targeting Tennessee’s abortion waiting period. After deciding the first— grounded in substantive due process—in Plaintiffs’ favor, the district court declined to decide the second, an equal- protection claim, reasoning that Plaintiffs had obtained all of their requested relief by way of the district court’s ruling on their first claim. Plaintiffs do not address their equal-protection claim here; only their substantive-due- process claim is the subject of this appeal.
[5] The majority here has at least stopped short of explicitly holding that held all waiting-period laws to be categorically constitutional under the undue-burden standard. Nevertheless, the majority’s terse treatment of the record provides evidence of its intention to adopt such a rule in practical effect.
[6]
The majority takes issue with the district court’s comparison of the relative availability of abortion
providers in Pennsylvania and Tennessee, insisting that it was improper for the district court to consider evidence
not considered by the Supreme Court when it decided
Casey
. But Plaintiffs established the relative availability of
abortion services through competent record evidence on which the district court was free to rely in making its
factual findings.
See Adams & Boyle
,
[7]
Tennessee contends that the district court clearly erred in finding that Tennessee’s waiting-period law
causes some women to miss the cutoff date for surgical abortions. Appellants Br. at 44. In essence, Tennessee’s
argument is that “at best” the evidence established that § 39-15-202(a)–(h) caused a small number of women to miss
certain providers’ self-imposed deadlines for the procedure, not the state’s legal cutoff at viability. Appellant Br. at
44–45. But Tennessee’s argument ignores the nature of the undue-burden inquiry, which is highly pragmatic and
turns upon the practical availability—not the legal availability—of abortion in a given state.
See June Medical
,
[8] Tennessee argues that “the district court’s finding that missing the cutoff for a medication abortion would increase travel was also clearly erroneous.” Appellants Br. at 48 (citing Adams & Boyle , 494 F. Supp. 3d at 562–63). The gist of Tennessee’s argument is that the clinics that offer only medication abortions have clinics nearby that offer surgical abortion such that the travel time is the same for a woman who has missed the cutoff for a medication abortion. The flaw in Tennessee’s argument is that it ignores the varying LMP cutoffs for surgical abortions. Surgical abortions are available in Memphis, Nashville, Knoxville, and Bristol, but are available only in Memphis and Nashville after 15 weeks LMP. Adams & Boyle , 494 F. Supp. 3d at 562–63. Thus, a woman in Knoxville (or whose closest abortion clinic is in Knoxville) who misses the deadline for a medication abortion would be unable to obtain a surgical abortion without travelling to Nashville or Memphis if Tennessee’s waiting- period law pushes her beyond 15 weeks LMP. See id. Therefore, it was not clear error for the district court to find that missing the cutoff for a medication abortion would increase travel time for some women who would need to travel to another clinic to obtain a surgical abortion.
[9]
Thus, even assuming that the denominator for the fraction would be “all women seeking an abortion,” the
test would be well satisfied here.
See Taft
,
[10]
In his concurrence, Judge Bush “take[s] a moment to consider how we are to” apply the large-fraction
test, Bush Op. at 14, and in doing so neatly illustrates the problems with the majority’s approach. He points out that
even if a plaintiff could establish the reduction in abortion prevalence that the majority requires, that same plaintiff
would further have to prove that the reduction resulted not from women freely choosing to continue their pregnancy
but from the law precluding them from having an abortion that they wished to have.
Id.
at 15. Short of surveying
every woman who considered but ultimately did not follow through on an abortion—a plainly impossible task—
plaintiffs challenging abortion restrictions cannot satisfy the “rigorous statistical analysis” that Judge Bush calls for.
Such a “rigorous statistical analysis,”
id.
, moreover, is contrary to
Casey
itself. The Court, in invalidating
Pennsylvania’s spousal-notification requirement, engaged in nothing resembling a statistical analysis.
See generally
Casey
, 505 U.S. at 887–98. Instead, it considered generalized evidence regarding domestic violence and spousal
abuse and concluded summarily that “[t]he spousal notification requirement is thus likely to prevent a significant
number of women from obtaining an abortion.” at 893.
So why does Judge Bush insist upon a standard so out of step with ? One need look no further than
the last sentence of his concurrence: “the point of the waiting-period law,” according to Judge Bush, is “to ensure
more time for an expectant mother to make an informed decision in the
hope
that she will choose life.” Bush Op. at
16 (emphasis added). While a state may act upon its interest in potential life, it is not for Judge Bush to root so
ardently for one side or the other: “Our obligation is to define the liberty of all, not to mandate our own moral
code.” ,
[11] Tennessee also contends that the waiting period “show[s] Tennessee’s ‘profound respect for the life within the woman.’” Reply at 25 (quoting Gonzales ,550 U.S. at 157 ). But every abortion regulation could claim that “benefit,” which cannot outweigh the practical burdens identified by the district court.
[12]
Tennessee insists that the district court clearly erred in finding not credible the testimony of Professor
Coleman and Dr. Podraza, arguing that “[t]he district court wrongly assumed that their opinions could not be trusted
because of their ‘strong’ pro-life views while simultaneously crediting the testimony of Plaintiffs’ witnesses, many
of whom were obviously strongly pro-choice.” Appellants Br. at 37–38 (internal citation omitted). Tennessee’s
argument must fail. “When findings are based on determinations regarding the credibility of witnesses, [reviewing
courts] demand[] even greater deference to the trial court’s findings; for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is
said.”
Anderson v. City of Bessemer City
,