Amicus Briefs Filed in Tennessee Abortion Case Emphasize Bans’ Harms to People of Color and Other Communities

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Bans Will Exacerbate Racial Disparities and Lead to Higher Rates of Maternal Mortality, Among Other Harms

01.14.2021

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Reproductive justice organizations, civil rights advocates, constitutional law scholars, state attorneys general and others have filed eight “friend-of-the-court” briefs in support of a case brought by the Center for Reproductive Rights and its partners challenging a set of extreme state abortion bans in Tennessee.

Several of the amicus briefs, which were recently filed with the Sixth Circuit Court of Appeals, focus on the harmful impact the bans will have on the health of Black women, people of color, and people with disabilities. The bans interfere with open and honest conversations about important health care decisions.

The Tennessee law being challenged bans abortion at a series of cascading gestational ages, beginning at just six weeks, when many people may not yet know they’re pregnant. The law also includes a set of “reason bans” prohibiting abortion if sought because of the race or sex of the fetus or potential for or diagnosis of Down syndrome. These bans are in direct conflict with the landmark Supreme Court decisions Roe v. Wade and Planned Parenthood v. Casey, which prohibit states from banning abortion before fetal viability. 

While Tennessee claims the reason bans are necessary to prevent discrimination, several of the amicus briefs demonstrate how these bans would lead to worse reproductive health access and outcomes for people of color and other groups.

We’re so grateful to the amici for submitting briefs that debunk Tennessee’s specious claims that these bans serve any beneficial purpose for communities of color and people with disabilities,” said Lourdes Rivera, Senior Vice President for U.S. Programs at the Center. “Their powerful legal and policy arguments, based on evidence and lived experience, demonstrate how these restrictions are instead harmful, including to the very people and communities whom the state purports to benefit. 

The case, Memphis Center for Reproductive Health v. Slatery, was brought by the Center, Planned Parenthood Federation of America, the American Civil Liberties Union, and the ACLU of Tennessee on behalf of the Memphis Center for Reproductive Health, Planned Parenthood of Tennessee and North Mississippi, Knoxville Center for Reproductive Health, carafem, and two abortion providers in Tennessee.

In July, a district court issued a preliminary injunction blocking the bans until the case is resolved, but in November a panel of the Sixth Circuit Court of Appeals granted the state’s request to let the so-called “reason bans” take effect. 

Tennessee’s abortion bans impose particular harms on people of color. 

A brief filed by the Tennessee reproductive justice organization SisterReach and 11 other reproductive justice and health organizations focuses on the disproportionate burdens the Tennessee bans impose on Black women and people of color. The brief explains that the bans are a continuation of the state’s legacy of attacking the reproductive rights, health, and bodily autonomy of these groups. 

The brief asks the Court “to consider the maternal and infant mortality crisis in Tennessee and the lived experiences of Black women and people of color, which demonstrate that the State’s purported interests in promoting maternal health and preventing discrimination are a pretext for restricting access to abortion. Far from advancing maternal health and preventing discrimination, the Abortion Bans will exacerbate racial disparities in health outcomes in Tennessee.” This point was also made in a separate brief filed by Illinois with 18 others states and the District of Columbia, which notes that “restrictive abortion laws cause worse health outcomes for women, and lead to higher rates of maternal mortality”—and that “[i]n Tennessee, Black women in particular bear those burdens.”

SisterReach’s brief further explains that “Supreme Court precedent clearly establishes that states may not prohibit previability abortions regardless of the states’ purported interests.” Thus because “Tennessee’s Cascading Bans and Reason Bans prohibit abortion before viability… [they] are plainly unconstitutional under Roe v. Wade.” 

The organizations joining SisterReach in the brief are A Better Balance, Healthy and Free Tennessee, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, the National Health Law Program (NHeLP), Payton Place, Reproaction, SisterLove, Inc., SPARK Reproductive Justice NOW!, STEPS, The Afiya Center (TAC), and Women With A Vision. 

A brief led by the National Asian Pacific Women’s Forum (NAPAWF) filed on behalf of three organizations representing Asian American and Pacific Islander (AAPI) people focuses on the sex-selective reason ban, which imposes criminal liability on providers if they know that a patient is seeking an abortion because of the sex of the fetus. The brief from NAPAWF, Asian Americans Advancing Justice, and Japanese American Citizens League explains that this ban “reflects, reinforces, and promotes racist stereotypes that will almost certainly result in AAPI women being denied the same abortion care that will still be available to non-AAPI women.” The brief also points out that Tennessee’s gestational bans impose significant burdens on low-income and immigrant AAPI women.

A brief from the Lawyers’ Committee for Civil Rights Under Law explains that Tennessee’s bans endanger the health of Black women and women of color and impose upon them significant barriers to abortion access. It points out that the law is unconstitutional because it places a “substantial obstacle in the path of a woman’s choice,” and that it “represents a specific harm to Black women and other women of color because these groups are disproportionately afflicted with maternal health complications.” The bans “will disproportionately and negatively impact the quality of life for women of color by worsening health, educational and economic outcomes for Black women and their children, who already experience the pervasive effects of structural racism.”

Tennessee’s reason ban uses people with Down syndrome to advance a comprehensive anti-abortion agenda. 

A brief from people with disabilities and disability rights advocates addresses the ban that prohibits abortions based on a fetal diagnosis of, or the potential for, Down syndrome. The brief explains that, far from supporting the Down syndrome community, the ban “injures individuals with disabilities because the statute’s true intent is to exploit that community for purposes of advancing a broader anti-abortion agenda.” As the brief highlights, this reason ban was one of many restrictions included in “a large-scale assault on abortion rights generally,” and was not part of any legislative effort to meaningfully advance the rights and interests of people with Down syndrome living in Tennessee. 

The brief goes on to describe how this ban interferes with the serious and personal decisions pregnant people make about their pregnancies, while doing nothing to facilitate “informed choice.” Quite the contrary, as amici discuss, the ban discourages communication between patients and their physicians, depriving pregnant people of “accurate information” and making it more likely “that they will terminate their pregnancies based on fears” that might have otherwise been discussed and addressed.

Major medical organizations and legal experts also oppose Tennessee’s abortion bans. 

The American College of Obstetricians and Gynecologists (ACOG) and the Society for Maternal-Fetal Medicine (SMFM) submitted a brief describing the bans’ impact on providers. The state, they explain, “seeks to impose criminal penalties on medical professionals providing essential medical care and to restrict the right of pregnant people to receive constitutionally protected abortion care.” 

Briefs supporting the Center’s case were also submitted by constitutional law scholars, who explain why Tennessee’s bans are unconstitutional, and by the Information Society Project at Yale Law School, which focuses on the harms caused by denying pregnant people full information about their health and options.

Read the briefs: 

Photos: Nina Robinson/Getty Images/Images of Empowerment