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Trial kicked off yesterday in Nashville, Tennessee, where Planned Parenthood and the Center for Reproductive Rights are representing five of Tennessee's seven remaining abortion clinics, which are trying to overturn a state law that mandates a 48-hour waiting period before a woman can have an abortion.

Mandatory waiting periods make abortion more difficult to access, more expensive, and less safe. Adams & Boyle v. Slatery raises a lot of important issues and could help make abortion easier to access for thousands of Tennesseans. It's also a case that could end up having profound national implications.

Once again, a woman's right to bodily autonomy is being closely examined by an old, white man. We just have to hope he's an old, white man on the side of the angels (and pregnant people).


Mandatory waiting periods suck

Mandatory waiting periods are more than just an annoyance -- for some women, it makes abortion care impossible to access. As noted by Aimee Lewis, vice president of external affairs for Planned Parenthood of Tennessee and North Mississippi:

For patients who have low income or inflexible work schedules, or live in rural areas that are far away from the health centers, they have to miss work, they have to lose wages, they have to pay for additional travel and childcare, just to access the care. It's especially onerous for patients who have to travel.

Fifty-nine percent of women who have abortions are mothers already. Seventy-five percent of women who have abortions are low income. Nearly half live below the federal poverty level. Women who are unable to terminate pregnancies are more likely to endure economic insecurity and hardship than women who are able to access abortion. Six months after being unable to have an abortion, women are less likely to have full-time employment, more likely to be dependent on public assistance, four times more likely to be below the federal poverty level, and three times more likely to be unemployed.

The vast majority of abortions take place in the first trimester, with 90 percent taking place in the first 13 weeks -- but abortion restrictions like mandatory waiting periods often push pregnancies into the second trimester. This, in turn, makes the procedure more expensive and more complex.

Medical abortions are only available during the first 70 days of pregnancy, so waiting periods force some women to have surgical abortions who otherwise could have opted to take medication to terminate their pregnancies. Other women are unable to terminate their pregnancies at all, because the waiting period forces them to postpone until they are too far along to have an abortion.

Some parts of Tennessee, like Chattanooga, are "abortion deserts," where pregnant people have to travel more than 100 miles to receive abortion care, making mandatory waiting periods even more onerous. Mandatory waiting periods also make abortion more expensive. Tennessee's 48-hour waiting period can increase the cost of an abortion nearly $1,000, once costs of childcare, transportation, lost wages, and the increased cost of the procedure are accounted for.

After Tennessee's waiting period law went into effect, the number of second trimester abortions went up 62 percent, despite the overall number of abortions going down. On Monday, Dr. Sarah Wallett, former medical director of Planned Parenthood of Tennessee and North Mississippi, testified that Tennessee's mandatory waiting period often delays abortions for up to a month.

Alex Rieger, the white male assistant attorney general defending the law, argued in his opening statement that the law is totally fine, because it gives those dumb, emotional women more time to think about what they're doing.

Blessed be the fruit!

Lawsplaining!

In 1992, in Planned Parenthood v. Casey, the US Supreme Court held that Pennsylvania's 24-hour waiting period was a permissible constraint on abortion. But a lot has happened since then and Casey left room for waiting periods to be overturned in the future.

In Casey, the Supreme Court ruled that a 24-hour waiting period didn't constitute an "undue burden" on women seeking an abortion. They said that a waiting period was permissible, because "under the undue burden standard, a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest." But it also left room for future cases, saying it was making that finding on the basis of the record before it.

But Whole Woman's Health, decided in 2016, went further than Casey. In determining what amounts to an undue burden, the Court looked to whether a particular restriction "offers medical benefits sufficient to justify the burdens upon access" that they impose on pregnant people. The Court looked to whether Texas had offered medical and scientific evidence to back up the abortion restrictions at issue and found it had not. It held that a requirement that abortion facilities be held to the same standards as ambulatory surgical "[did] not benefit patients and [was] not necessary."

Whole Woman's Health gives courts room to find mandatory waiting periods unconstitutional. And last year, the Iowa Supreme Court ruled that a 72-hour waiting period was unconstitutional under their state constitution. There is also a plethora of medical and scientific evidence that was unavailable in 1992, when Casey was decided, showing how mandatory waiting periods harm people seeking abortion care.

Unfortunately, things have changed at the Supreme Court since 2016, and not in a good way. Justice Anthony Kennedy, who was the swing vote in Whole Woman's Health, retired. Kennedy was replaced by none other than Kegs Kavanaugh, who has shown nothing but disdain and disregard for women his entire life. Chief Justice John Roberts, who joined Justice Samuel Alito's dissent in Whole Woman's Health, is now the Court's "swing" vote. While Roberts can occasionally be persuaded to do the right thing, his judicial record shows nothing but antipathy towards women's bodily autonomy. And a bad decision from the Supreme Court could do more than just allow long waiting periods -- it could use broad language to dismantle the entire undue burden framework that has helped protect abortion rights for decades.

But we are probably at least a year away from the Tennessee case reaching SCOTUS, if it does at all. First, we have to get through trial and a likely appeal to the Sixth Circuit (also not exactly a bastion of hope).

Senior District Judge Bernard Friedman, a Reagan appointee, will preside over the trial and rule on the constitutionality of Tennessee's 48-hour waiting period. The trial is expected to last one week.

Under His Eye.

[Courthouse News / AJPH / NBER / AP / Whole Woman's Health / Casey / Guttmacher]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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