Tennessee Abortion Provider Wins Halt to Covid-19 Order

Tennessee may not enforce an emergency coronavirus order suspending elective and nonessential medical procedures to stop an abortion provider from performing procedural abortions, a federal court in the state said.

Adams & Boyle PC is likely to win on its claim that applying the order in this fashion is unconstitutional because it places a substantial burden on a woman’s right to end a pregnancy before viability without undue state interference, the U.S. District Court for the Middle District of Tennessee said April 17.

The court granted a preliminary injunction prohibiting Tennessee authorities from enforcing the order against the provider.

The order as applied prohibits an abortion for any woman who is more than 11 weeks pregnant or for whom a medication, or pill-induced, abortion is contraindicated, the court said.

This violation of a woman’s constitutional right imposes irreparable harm, the court said. Additionally, any delay itself causes irreparable harm because abortion is a time-sensitive procedure, it said.

The harm to women seeking abortions “vastly outweighs” the harm the state might suffer if stopped from enforcing the order, the court said. The state argued the order is needed to protect health and safety during the public health emergency and to preserve medical supplies needed by providers fighting Covid-19, the disease caused by the coronavirus.

But Adams & Boyle demonstrated that it is taking necessary precautions and that it doesn’t use any more medical supplies than absolutely necessary, the court said. The state didn’t show that shutting down the clinic would save any appreciable amount of personal protective equipment.

It is in the public’s interest to prevent the violation of a person’s constitutional rights, the court also said.

The court allowed Adams & Boyle to file a supplemental complaint raising its claims against the Covid-19 order in a case in which it previously challenged a law that requires women to wait 48 hours before having an abortion.

Federal courts in Ohio, Oklahoma, Arkansas, and Alabama also have blocked the states from using Covid-19 orders to prohibit previability abortions. A suit also is pending in Louisiana.

The state immediately filed a motion to stay the injunction and a notice that it is appealing the decision to the U.S. Court of Appeals for the Sixth Circuit.

Judge Bernard A. Friedman, of the U.S. District Court for the Eastern District of Michigan, sitting by designation, wrote the opinion.

The American Civil Liberties Foundation of Tennessee, Barrett Johnston Martin & Garrison LLC, Jessee & Jessee, Kramer Levin Naftalis & Frankel LLP, the Center for Reproductive Rights, the American Civil Liberties Union Foundation, and the Planned Parenthood Federation of America represent the providers. The Tennessee Attorney General’s Office represents the state.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Adams & Boyle, P.C. v. Slatery, 2020 BL 144091, M.D. Tenn., No. 3:15-cv-705, 4/17/20.