Tennessee can't delay abortions, 'even by a matter of days,' amid COVID-19, judge says
Tennessee must allow abortions to move forward during the COVID-19 pandemic, a federal judge ruled Friday evening, handing a victory to abortion providers who have fought the state for years.
U.S. District Judge Bernard A. Friedman issued a preliminary injunction that kept the state from stopping surgical abortions. State lawyers quickly moved to appeal, and they asked the judge to delay his decision until a federal appeals court could weigh in.
Gov. Bill Lee had issued an executive order earlier this month that banned "non-emergency" medical procedures through April 30 in an effort to preserve medical equipment needed to fight the coronavirus.
Abortion providers said the order forced them to cancel or delay several surgical procedures. They filed a challenge in federal court Monday, saying the order violated women's constitutional right to access abortions.
Friedman sided with abortion providers, saying they had convincingly argued Lee's order was too restrictive.
"Abortion is a time-sensitive procedure," Friedman wrote. "Delaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether."
Lawyers from the Tennessee attorney general's office had argued the executive order was necessary to preserve personal protective equipment, or PPE, for workers fighting the coronavirus.
The state lawyers said abortion clinics could pull needed supplies away from hospitals for abortions, which they described as "non-urgent procedures that are not emergencies.”
In his order, Friedman said the abortion providers had shown they used a limited amount of PPE, and that timely abortions required less PPE than continuing a pregnancy.
The judge, who was appointed to the federal bench by former President Ronald Reagan, issued his order after hearing from both sides during a telephone conference earlier Friday.
Abortion advocates, who had joined providers to ask for the restraining order in federal court, cheered Friedman's decision Friday night.
“The court’s decision today ensures that women in Tennessee can continue to make their own decisions about pregnancy and parenting based on what is best for their families,” Hedy Weinberg, executive director of the ACLU of Tennessee said in a statement. “Abortion is time-sensitive essential health care and the COVID-19 crisis cannot be used to prevent women from obtaining abortions. Especially during a pandemic, it is crucial that women have access to a full range of health services, including abortion, to ensure their health and wellbeing.”
The Center for Reproductive Rights, Planned Parenthood Federation of America, the ACLU, and other allies joined the Tennessee abortion providers in this effort. The national groups have fought similar efforts to curtail abortion in other states amid COVID-19.
Soon after Friedman entered his order Friday night, the Tennessee attorney general's office notified the court they would appeal. They asked Friedman to delay his order until the 6th U.S. Circuit Court of Appeals had reviewed the issue.
In their motion for a stay, the Tennessee attorneys argued Friedman's order allowing surgical abortions to continue amid the pandemic "undermines the State’s ability to effectively prepare for the incoming wave of infections and ensures that the virus may continue to spread through the State’s healthcare system and beyond."
Lee's office did not respond to a request for comment Friday night.
The Tennessee abortion providers challenged Lee's COVID-19 order within an ongoing lawsuit over the state's 48-hour abortion waiting period law. That case already went to trial, and a decision is pending.
