Bristol Regional Women's Center, P.C. v. Slatery, No. 20-6267 (6th Cir. 2021)
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Tennessee Code 39-15-202(a)–(h) requires that women be informed, orally and in-person by the attending physician or by the referring physician that she is pregnant; of the fetus’s probable gestational age; whether the fetus may be viable; of services “available to assist her”; and of “reasonably foreseeable medical benefits, risks, or both of undergoing an abortion or continuing the pregnancy.” There is a 48-hour waiting period, beginning when the woman receives the mandated information, which can be reduced to 24 hours by court order.
The district court declared the waiting period unconstitutional and permanently enjoined its enforcement. The Sixth Circuit denied a stay pending appeal but subsequently, “en banc,” reversed. The facial attack fails as a matter of law. Given Tennessee’s strong “interest in protecting the life of the unborn,” there was a rational basis to enact a waiting period, which is not a substantial obstacle to abortion in a large fraction of cases. The plaintiffs claimed that the law—even if facially valid— is unconstitutional as applied to women who will miss the cutoff date for an abortion because of the waiting period; women whose medical conditions increase the risk of delaying the procedure; and women who are survivors of rape, incest, or violence. But, although the law has been in effect for five years, 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.
This opinion or order relates to an opinion or order originally issued on February 19, 2021.
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