Sixth Circuit Court of Appeals affirms lower court decision blocking Tennessee’s order restricting abortions during the pandemic

April 24, 2020

NASHVILLE, Tenn. — The Sixth Circuit Court of Appeals affirmed last night a preliminary injunction granted by a lower court, allowing abortion clinics in Tennessee to continue providing time-sensitive abortion procedures during the coronavirus (COVID-19) pandemic.

The decision comes after Tennessee Governor Bill Lee issued a state order on April 8 banning all abortion services other than medication abortions (which involve taking pills and are only available until 11 weeks of pregnancy), despite leading national medical groups agreeing that abortion procedures are essential and time-sensitive. Tennessee is one of eight states where officials have exploited the COVID-19 pandemic to limit abortion access.

In its decision, the court wrote, “The State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. This is unsurprising because, as far as we can tell, every serious medical or public health organization to have considered the issue has said the opposite.”

Below are additional comments from:

Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project: “This is a critical victory for Tennesseans who, on top of all the turmoil of this moment, are facing an unintended pregnancy and urgently need care. We hope the state will now focus on protecting its citizens during the pandemic rather than exploiting the crisis to push an anti-abortion agenda."

Nancy Northup, president and CEO of the Center for Reproductive Rights: “This decision sends a clear message to Tennessee: You cannot use a public health crisis to cut off abortion access. In the last month, courts across the country have ruled that states cannot use emergency powers to deny women the right to end a pregnancy. It’s time for states to stop exploiting this pandemic.” 

Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America: “Once again, it’s taken a court fight to stop another governor from exploiting this pandemic to score political points. Abortion is time-sensitive, essential health care that cannot wait for a pandemic to pass. Today’s ruling is a sigh of relief for patients. We cannot forget that the essential workers on the front lines of this pandemic are the same people who are disproportionately harmed when access to health care is attacked. We’ll continue to fight these cruel attacks on abortion in Tennessee and across the country.”

Since the beginning of the COVID-19 outbreak, many state officials have attempted to ban or limit abortion. In addition to Tennessee, lawsuits are ongoing in Alabama, Arkansas, Louisiana, Ohio, and Oklahoma. Leading medical organizations like the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) have opposed Tennessee’s order, stating: “Permitting abortion care — which is essential, time-sensitive health care — will not substantially increase the burdens hospitals face as a result of the COVID-19 pandemic. The vast majority of procedural abortions are performed in non-hospital settings, and they typically require only minimal PPE.”

Tennessee also bans the use of telehealth for medication abortion — a method that could greatly expand access and reduce in-person contact. Other abortion restrictions in Tennessee include: a mandatory 48-hour waiting period (which includes a requirement that patients make an additional, medically-unnecessary trip to the clinic to receive state-mandated information); limits on when state and public insurance can cover abortion services; and a requirement that minors obtain parental consent. 

This lawsuit was filed by the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union, the ACLU of Tennessee, pro-bono counsel Kramer Levin, and local counsel Barrett Johnston Martin & Garrison, LLC. Plaintiffs in the case are CHOICES Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Bristol Regional Women’s Center, and Dr. Kimberly Looney. 

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