Emergency Lawsuit Filed in Tennessee to Keep Abortion Accessible During Pandemic

NASHVILLE, Tenn. — The American Civil Liberties Union, the ACLU of Tennessee, the Center for Reproductive Rights, and Planned Parenthood Federation of America challenged a Tennessee order today effectively banning abortion procedures in the state.

The April 8 order, issued by Tennessee Gov. Bill Lee in response to the coronavirus (COVID-19) pandemic, limits “non-emergency” health care procedures and bars people from getting a procedural abortion. Patients who are less than 11 weeks pregnant are still permitted to obtain medication abortions in the state.

Tennessee is not the first state to restrict abortion care during the COVID-19 pandemic. The ACLU, the Center for Reproductive Rights, Planned Parenthood Federation of America, and other allies have filed lawsuits in multiple states. In Texas, most abortions are currently prohibited, and providers have asked the Supreme Court to intervene on an emergency basis. Court decisions allowing abortion care to continue have been issued in Alabama, Ohio and Oklahoma.

Statement from Julia Kaye, staff attorney, ACLU Reproductive Freedom Project:
“We must all do our part during this crisis, but government action must be rooted in science and public health, not politics. The simple truth is that banning abortion doesn’t conserve health care resources or stop the transmission of the virus, because pregnancy cannot be put on pause during a pandemic. Pregnant people will need access to health care, whether it’s abortion care, treatment for a miscarriage, or prenatal care and childbirth support. Tennessee’s action doesn’t make our communities any safer — it just forces people to stay pregnant against their will, at a time when so many lives are already in turmoil.”

Statement from Nancy Northup, president & CEO, Center for Reproductive Rights:
“We have filed this case to protect the constitutional rights of women in Tennessee who need access to essential, time-sensitive abortion care. All signs indicate that this crisis will not be over soon, and patients cannot wait until it is. Leading medical experts have been clear that COVID-19 responses should not ban abortion care.”

Statement from Alexis McGill Johnson, acting president and CEO, Planned Parenthood Federation of America:
“Abortion is essential, it’s time-sensitive, and it cannot wait. Don’t be fooled: Gov. Lee’s use of his executive order to block access to abortion will not keep people safe during this pandemic. To the contrary, it will only drive patients towards unconscionable options like traveling farther to get the care they need, increasing their chances of exposure to the new coronavirus. Instead of letting them care for their patients, Gov. Lee is forcing doctors and nurses to fight in court — during a pandemic — to defend their patients’ rights. This is politics at its worst.”

The lawsuit filed today argues that Tennessee’s order effectively bans abortion in the state for many women, violating Roe v. Wade and nearly 50 years of Supreme Court precedent protecting a woman’s right to liberty and autonomy under the Fourteenth Amendment. The lawsuit also argues that forcing women to travel out of state for abortion care, or to carry an unwanted pregnancy to term and give birth, will increase the risk of spreading COVID-19 and undermine the state’s asserted goal of preserving medical resources and limiting person-to-person encounters.

Leading medical organizations like the American College of Obstetricians and Gynecologists and the American Medical Association have opposed these attempts to restrict abortion during the pandemic. Both groups filed an amicus brief in the case challenging Texas’s COVID-19 abortion ban, stating: “Indeed, the Governor’s order is likely to increase, rather than decrease, burdens on hospitals and use of PPE. At the same time, it will severely impair essential health care for women, and it will place doctors, nurses, and other medical professionals in an untenable position by criminalizing necessary medical care.”

Tennessee also bans the use of telehealth for medication abortion — a tool that could greatly expand access and reduce in-person contact. Other abortion restrictions in Tennessee include: a mandatory 48-hour waiting period (which includes a requirement that patients make an additional, medically unnecessary trip to the clinic to receive state-mandated information); limits on when state and public insurance can cover abortion services; and a requirement that minors obtain parental consent.

This lawsuit was filed by the Center for Reproductive Rights, Planned Parenthood Federation of America, the ACLU, the ACLU of Tennessee, and pro-bono counsel Kramer Levin Naftalis & Frankel LLP. Plaintiffs in the case are CHOICES Memphis Center for Reproductive Health, Knoxville Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Adams & Boyle P.C., and Dr. Kimberly Looney.