The 6th U.S. Circuit Court of Appeals heard arguments on Thursday from Tennessee anti-abortion attorneys and reproductive rights groups. The hearing occurred less than a week after another 6th Circuit court reinstated the state’s mandatory 48-hour waiting period for patients seeking abortions.
The arguments, given via livestream, are part of an ongoing legal battle centered around a 2020 bill signed into law by Gov. Bill Lee, which banned abortion at six weeks of gestation, as well as for reasons of birth defects, race, or gender. The bill was swiftly blocked by a lower federal appeals court.
Attorneys for the state argued that the bill did not place an undue burden on patients, despite Judge Karen Nelson Moore raising the possibility most people are not aware of their pregnancies at such an early point in time. Sarah Campbell, special assistant to the state attorney general, defended that the bill has a flexible scale of acceptable cut-off points up to 24 weeks of gestation, although the state preferred to draw the line at 15 weeks to prevent fetal pain.
“There is a growing medical consensus that an unborn child is capable of perceiving pain at that point in time,” said Campbell. “The state has a very strong interest in preventing fetal pain, and fifteen weeks is when the abortion providers begin using D&E abortions, which involve dismemberment of the unborn child.”
D&E (dilation and evacuation) is the most common method of second-trimester abortion. It is also often called “partial-birth abortion” by anti-abortion activists, although that is not a term used or recognized by healthcare professionals. In a D&E procedure, the cervix is widened and the fetus is removed whole through the use of suction. It does not typically require dismembering the fetus.
The plaintiffs, represented by attorney Rabia Muqaddam, focused on the unconstitutionality of the bill. Muqaddam pointed to prior rulings, such as the landmark Roe v. Wade, which established that states could not interfere with a patient’s decision terminate an pregnancy prior to viability.
“That decision must be the patient’s, and the patient’s role is to evaluate whatever interests are relevant to her and to make the ultimate decision to have an abortion,” said Muqaddam. “[The bans] directly police the heart of the right, removing the decision from the woman entirely.”
The court will release their decision at a later date. The Tennessee legislature currently has a few abortion-related bills under consideration, including one requiring fetal remains to be buried or cremated.