Attorney General Herbert Slatery has filed a motion with the 6th Circuit Court of Appeals to lift a stay on a 6 week abortion ban. (Photo: Tennessee Attorney General)
Tennessee Attorney General Herbert Slatery has filed an emergency motion with the 6th Circuit Court of Appeals seeking to lift a stay on a 6-week abortion ban enacted by the state legislature in 2020 — within hours of the U.S. Supreme Court’s momentous decision overturning Roe v. Wade.
Lifting the appeals court’s stay would make it a crime to perform an abortion after a fetal heartbeat can be detected, or at about 6 weeks of gestation — before many women know they are pregnant. Should the 6th Circuit agree to lift its stay, abortion may become almost entirely inaccessible in Tennessee immediately.
The 6th Circuit on Friday afternoon set a Monday morning deadline for abortion providers to respond to the emergency petition, and a Monday afternoon deadline for the state to submit additional arguments.
The law is separate from Tennessee’s so-called “trigger law” that would make abortion a crime for anyone performing it. Friday’s Supreme Court decision overruling Roe triggers the near total ban on abortion in Tennessee on the 30th day after the court’s ruling. Slatery, who has set a news conference for 2 p.m. Friday, is expected to announce he has set that process into motion. Tennessee is one of 26 states that has trigger laws or pre-Roe laws that remain on the books that could bar most, if not all, abortions.
Tennessee’s trigger law makes abortion a crime: a Class C felony for physicians – or anyone else – who performs an abortion, punishable by up to 15 years in prison and a fine of up to $10,000.
It has one exception: abortions necessary to prevent death or “serious risk of substantial and irreversible impairment of a major bodily function.” A woman’s mental health is explicitly excluded as a serious risk of substantial and irreversible impairment. Physicians in those circumstances must be prepared to provide proof as a defense to criminal prosecution.
A physician performing an abortion under these circumstances would also have to be ready to provide proof that he or she made a best-faith effort to deliver the fetus alive, unless the doctor could show that doing so would cause death or grave harm to a woman.
Women seeking an abortion face no criminal penalties.
In his emergency filing with the 6th Circuit, Slatery noted the U.S. Supreme Court’s decision on Friday in Dobbs v. Jackson Women’s Health Organization, a case out of Mississippi, makes Tennessee’s 6-week abortion ban likely to pass Constitutional muster.
“Because the Supreme Court has now expressly overruled Roe and Casey, the State is also likely to prevail on appeal,” the emergency motion said.
“As the State recognized in Dobbs, the State has a valid interest in protecting the lives of unborn Tennesseans. Those lives are at risk each day the preliminary injunction remains in place, so this Court should grant the State’s motion as soon as possible.”
A decision by the 6th Circuit could come as soon as next week.
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