Adams & Boyle, P.C. v. Slatery, No. 20-5408 (6th Cir. 2020)
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In response to the COVID-19 pandemic, the Governor of Tennessee issued “shelter-in-place” orders. On April 8, 2020, the Governor ordered that “[a]ll healthcare professionals and healthcare facilities ... postpone surgical and invasive procedures that are elective and non-urgent,” until April 30 in order to preserve personal protective equipment and prevent community spread of COVID-19 through nonessential patient-provider interactions. Elective and non-urgent procedures were defined as those that can be delayed because they are not required to provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition … as reasonably determined by a licensed medical provider. A Tennessee woman may receive a “medication abortion” within 11 weeks from her last menstrual period or a “procedural abortion” within the first 20 weeks (aspiration or dilation and evacuation), subject to a 48-hour waiting period and in-person visitation requirements.
On April 17, the district court enjoined Tennessee from enforcing that ban against doctors performing abortion procedures. The Sixth Circuit affirmed, acknowledging the challenges Tennessee faces in responding to the public health crisis,” but concluding that the “response, in this one respect, unduly curtailed constitutional liberty." The court ordered modification of the injunction so that it prohibits the state from enforcing the ban against plaintiffs to the extent they provide procedural abortions to specific patients, including women who, in the good-faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration if their procedures are delayed.
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