Tennessee, South Carolina Defend Pro-Life Laws in Court

Pro-life state legislatures are showing their commitment to save preborn babies by standing behind their pro-life laws in court. Tennessee is asking the Supreme Court for relief as it appeals a lower court decision striking down its 48-hour waiting period requirement before an abortion. And, recently South Carolina officials announced they will appeal a court ruling striking down a new “heartbeat bill” that bans abortions after a preborn baby’s heartbeat can be detected.

Tennessee’s legislature passed its current 2-day waiting period law in 2015 in an effort to give an abortion-minded woman the opportunity to think about her decision free of pressure from the abortion clinic or doctor she initially consulted with. Fourteen states have similar laws, and the U.S. Supreme Court itself upheld abortion waiting period laws in the 1992 case, Planned Parenthood v. Casey.

In spite of the Casey precedent, a federal district court in Tennessee struck down the 2015 law last fall, and the 6th U.S. Circuit Court of Appeals recently refused to issue an order allowing the law to remain in effect while the parties pursued an appeal to that court. So, the state of Tennessee approached Justice Brett Kavanaugh with an emergency application asking the Supreme Court to step in and issue an order allowing the law to go back into effect while the parties litigate at the 6th Circuit.

“Tennessee has now been unable to enforce its waiting period for over five months,” the application states. “And although fourteen other States have similar waiting-period laws that generally require two trips to an abortion provider, Tennessee is the only State in the Nation that cannot enforce its law because of a federal judicial decree. Tennessee respectfully requests that this Court immediately stay the district court’s judgment and injunction pending completion of further proceedings in the court of appeals and, if necessary, this Court.”

Justice Kavanaugh, who oversees emergency requests from litigants in the 6th Circuit, could decide the request himself, or as is more frequently done, refer it to the whole court for a decision. Whether the high court decides to grant or deny the request, the appeal will proceed at the 6th Circuit until that court rules, at which time the case could come back to the justices for a thorough review.

South Carolina recently passed a “heartbeat bill” prohibiting abortions after a preborn baby’s heartbeat can be detected, usually somewhere between six- and eight-weeks’ gestation. On March 19, Planned Parenthood was able to convince a federal judge to issue an injunction blocking the new law from taking effect.

On April 2,  South Carolina Governor Henry McMaster and other government officials announced plans to appeal the injunction to the 4th U.S. Circuit Court of Appeals.

“We have appealed the federal court’s preliminary injunction against the Fetal Heartbeat Bill,” McMaster told ABC affiliate WNCT9. “No fight is more worthy of our time and energy than the fight to protect life in South Carolina.”

Heartbeat bills are generally considered to be a direct challenge to the Supreme Court’s abortion decisions in Roe v. Wade and Planned Parenthood v. Casey, which have been understood to severely restrict any state interest in prohibiting or regulating the abortion “right” prior to the viability of the preborn baby. “Viability” is generally understood to be between 24 and 28 weeks after the start of a woman’s last menstrual period, though babies have survived as young as 21 weeks.

All of the approximately one dozen heartbeat bills passed by state legislatures in the last few years have been blocked from going into effect by lower federal courts. It is hoped that by appealing one or more of these lower court rulings all the way to the Supreme Court, the justices will take a fresh look at Roe and Casey and overturn them as unconstitutional. Doing so would remove the courts as policymakers on the issue of abortion and send it back to the state legislatures and Congress to address.

Relatedly, the U.S. Supreme Court has delayed responding to a petition to address the constitutionality of Mississippi’s 15-week ban on abortion filed last June. No explanation has been provided by the high court for its continued silence in that case.

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