U.S. District Judge Bernard Friedman said the defendants didn't show that any appreciable amount of personal protective equipment, or PPE, would be saved if the ban is applied to abortions. In a hearing by phone Friday, attorneys representing several state abortion clinics argued that Tennessee women will face immediate harm if the ban on abortions is not lifted.
Alex Rieger, arguing for the Tennessee attorney general's office, said abortions are not being singled out but treated like any other procedure that is not necessary to prevent death or serious bodily injury. Gov. Bill Lee issued an emergency order on April 8 banning those procedures for three weeks.
The goal of the ban is to preserve the limited supply of PPE for doctors fighting COVID-19 and to help prevent the community spread of the disease by limiting patient-provider interactions, Rieger said. The two sides tangled over whether halting abortions would meet or undermine that goal.
Several other states are grappling with similar issues. Judges in the past week have ruled to allow abortions to continue in Arkansas, Oklahoma, Ohio and Texas. Genevieve Scott, an attorney with the Center for Reproductive Rights, argued that all pregnant women need care. About 1 in 5 pregnant women require hospital visits before labor, and 15-20% of pregnancies end in miscarriages. Even those women without problems require prenatal care and tests. All of that requires providers to use personal protective equipment and interact with patients, Scott said.
Rieger argued that most of what Scott described would take place a couple of months down the road and that "every piece of PPE we use now is a piece that is not available when this disease reaches its peak.”
Scott disputed that idea, saying the needs are immediate. She also noted that there is no guarantee the executive order will not be extended. “Nothing in their arguments today suggests they really believe that in three weeks the issue will be resolved,” she said.
Abortion clinics have already turned away dozens of patients, Scott said. The longer an abortion is delayed, the greater chance of complications, she said. And the delay could prevent some woman from having an abortion altogether by pushing them past 20 weeks gestation, after which abortions generally are not available in Tennessee.
Rieger asserted that Tennessee has the power to restrict abortions in a public health emergency, citing a 1905 U.S. Supreme Court case in which the court held that requiring citizens to be vaccinated for smallpox was a legitimate exercise of the state’s police powers to protect the health and safety of its citizens.
He suggested abortion providers don't want to play by the rules that everyone else has to abide by. “They want abortion to carry on in Tennessee as if COVID had never happened,” Rieger said. “Tennesseans are making extraordinary sacrifices. Abortion providers don't want to sacrifice.”
Scott argued that abortion has been recognized as a constitutional right. And she said medical groups, including the College of Surgeons, which the state relied upon in crafting its executive order, recognize that abortion is essential care that should not be delayed.
“The state is singling out abortion as the only essential care excluded by the executive order,” she said. Tennessee's Republican governor often speaks of his Christian faith and has said he wants to enact some of the strictest abortion laws in the nation, including banning women from undergoing the procedure once a fetal heartbeat is detected.
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