Supporters of Planned Parenthood in the gallery of the Tennessee House of Representatives during a 2021 debate about abortion. (Photo: Ray Di Pietro)
The state of Tennessee has agreed to pay attorneys for abortion providers $249,000 to cover legal fees stemming from their challenge to an executive order by Gov. Bill Lee during the initial months of the COVID-19 pandemic that temporarily banned most abortions.
The settlement — an agreed-upon sum between the office of Attorney General Herbert Slatery, III and five Tennessee abortion providers — covers legal costs associated with a lawsuit against one of Lee’s earliest pandemic-related emergency orders, after a federal court and an appellate court ruled his order was unlikely to pass constitutional muster.
Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi, said in a statement Wednesday that the ultimate outcome of the governor’s actions amounted to “a waste of taxpayer dollars.”
“We are pleased that the court has ruled in our favor and covered court costs, but it never should have come to this,” Coffield said. “Abortion is essential healthcare. Using COVID-19 as a pretext to prohibit abortion access served no public health benefit and was nothing more than a blatantly political move by the governor and a waste of taxpayer dollars.”
A spokesperson for the Office of Attorney General did not respond to an emailed request for comment.
Executive Order 25 suspended most surgical abortions and all other elective medical procedures, in part — Lee said at the time — to conserve personal protective equipment. Lee’s order, signed April 8, 2020, was challenged in court days later by abortion providers, who said it had resulted in chaos. The order unconstitutionally curtailed abortion access for women in the state, they said in court filings, with scores of procedures cancelled immediately after Lee issued the order and abortion clinic staff unable to schedule appointments for women in the weeks ahead.
We are pleased the court has ruled in our favor and covered court costs . . . Using COVID-19 as a pretext to prohibit abortion access served no public health benefit and was nothing more than a blatantly political move by the governor and a waste of taxpayer dollars.
– Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi
A Nashville federal judge issued a preliminary injunction, barring Lee’s order from applying to abortions. State attorneys appealed the case to the 6th Circuit Court of Appeals, which refused to lift the injunction then rejected a request to rehear the case.
The appeals court later ruled that the executive order could apply only to women whose pregnancies were so advanced they would lose their ability to get an abortion in Tennessee or face more complex abortions. While litigation was ongoing, the time-limited executive order quietly ended: it expired April 30 of last year.
Attorneys for the state on Wednesday filed a notice of the $249,000 agreement, which is expected to receive approval from the judge in the case.
But in a lengthy court filing in late October, attorneys for abortion providers laid out a long-delayed process leading up to the agreement. Attorneys for both sides agreed in May that the state would pay $166,000 in attorney fees after their loss in the district court, and an additional $83,000 for their loss at the appellate court. The agreement was dependent on approval by the Attorney General, Gov. Lee and the Comptroller.
Months passed. State attorneys failed to return phone calls from the abortion providers’ legal team. In September, state attorneys finally responded saying they were still waiting on approval for the settlement amount.
Attorney fees are routinely granted to prevailing parties in lawsuits. In its filing Wednesday, state attorneys said they have “no grounds to oppose an award of attorney’s fees. The Plaintiffs are entitled to $249,000 in fees and expenses…”
The legal challenge to Lee’s executive order was unusual in that it was filed as part of an long-running lawsuit brought by abortion groups seeking to overturn a 2015 law requiring a 48-hour waiting period before a women in Tennessee could obtain an abortion.
On Friday, Slatery publicly claimed victory in that lawsuit, issuing a news release noting that a ruling by the 6th Circuit in August upholding the waiting period had now passed its deadline for appeal. The law requires women seeking an abortion to first have an in-person counseling session with a physician 48 hours before being allowed to obtain an abortion.
A spokesman for the Attorney General did not respond to a question about whether the state plans to seek attorney fees from Tennessee abortion providers for their ultimately unsuccessful challenge to the waiting period law.
Abortion providers involved in the lawsuit include: the Bristol Regional Women’s Center, CHOICES, the Memphis Center for Reproductive Health, the Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi and Dr. Kimberly Looney, an obstetrics and gynecology physician affiliated with Planned Parenthood.
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