 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Planned Parenthood of Middle Tennessee v. Sundquist9/15/2000
l portion of a statute and find the remaining provisions to be constitutional and effective." Id. at 355. Even though the General Assembly included a severability clause when the statutes were recodified in 1989, 1989 Tenn. Pub. Acts, ch. 591, § 120, the State's arguments have not only stressed the importance of having the physician personally inform the woman but have further insisted that medical ethics require the physician to inform the woman. Accordingly, we conclude that the legislature would not have enacted the informed consent provisions in absence of the physician-only counseling requirement, and that consequently, the doctrine of elision cannot apply to save the remaining informed consent provisions.
b. Mandatory Waiting Period Requirement
We further conclude that the two-day waiting period requirement contained in Tenn. Code Ann. § 39-15-202(d)(1) fails to pass constitutional muster. The State appears to argue that the waiting period requirement furthers its interest in potential life and explicitly argues that this provision protects maternal health by ensuring that the woman has adequate time to reflect on her decision after hearing the statutorily prescribed information. The State has not argued that the waiting period provision is narrowly tailored to further a compelling state interest, but instead points to evidence that while the waiting period was in effect, the District Court for the Western District of Tennessee made a finding of fact that over 3,000 abortions were performed during the year preceding the hearing in the case, see Planned Parenthood of Memphis v. Alexander, No. 78-2310 (W.D. Tenn. March 23, 1981), p. 7, and that, consequently, this requirement does not create an undue burden.
In Akron, the United States Supreme Court struck down a twenty-four hour waiting period, reasoning that "careful consideration of the abortion decision by the woman `is beyond the state's power to require.'" 462 U.S. at 450, 103 S. Ct. at 2503 (citation omitted). The Court characterized the twenty-four hour waiting period as "arbitrary and inflexible" and reasoned that the city had failed to show that the requirement increased the safety of abortion or otherwise furthered a legitimate state interest. Id. The Court concluded:
The decision whether to proceed with an abortion is one as to which it is important to "affor the physician adequate discretion in the exercise of his medical judgment." In accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision. Id. at 450-51, 103 S. Ct. at 2503 (emphasis added) (citation omitted) (footnote omitted).
Although later the authors of the Casey opinion determined that a 24-hour waiting period did not violate the "undue burden" standard, 505 U.S. at 887, 112 S. Ct. at 2826, the reasoning of the Supreme Court in Akron is equally applicable to the challenge made here under the Tennessee Constitution. As the trial court stated,
a woman contemplating an abortion should be allowed "sufficient time for reflection" before she makes an informed decision. However, a "sufficient amount of time" varies with each individual woman, and the inflexibility of a two-day waiting period as it applies to every woman except in a medical emergency situation requires its invalidation. The majority of the expert testimony seemed to acquiesce in the fact that most women have seriously contemplated their decision before making
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|