Commonwealth of Virginia Office of the Attorney General

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~ Herring joins coalition of 20 attorneys general in filing an amicus brief arguing that Tennessee abortion bans are unconstitutional ~

RICHMOND (December 22, 2020) – Attorney General Mark R. Herring today joined a coalition of 20 attorneys general in filing an amicus brief contesting the constitutionality of two abortion bans enacted in Tennessee. In their brief, Attorney General Herring and his colleagues argue that the b12.ans are unconstitutional, do not promote women’s health care, and deny women access to safe, legal abortions.

Attorney General Herring and his colleagues filed the amicus brief in the U.S. Court of Appeals for the 6^th Circuit in Memphis Center for Reproductive Health, et al. v. Herbert Slatery, et al. In the brief, Attorney General Herring and his colleagues urge the appellate court to affirm the district court’s injunction preventing enforcement of a state law that will create barriers to safe and legal abortions that disproportionately impact Black, minority and low-income women. The attorneys general argue that the law places unconstitutional restrictions on a woman’s right to choose.

“Every woman has the right to make her own reproductive healthcare choices without the government telling her what to do,” said Attorney General Herring. “Tennessee’s bans are unconstitutional and will make it much harder for women, especially low-income women, to make safe reproductive healthcare choices. I will continue to fight to make sure that women in Virginia and around the country have access to reproductive healthcare and have the ability to make their own decisions.”

This summer, Tennessee enacted a so-called “Reason Ban,” which prohibits abortion at any stage of pregnancy if the provider “knows” that the patient’s decision to terminate is based on a Down syndrome diagnosis, sex, or race. In addition, the so-called “Cascading Bans” prohibit abortion as early as six weeks’ gestation and, if deemed unconstitutional, at various stages of pregnancy. Most of these restrictions would ban abortions several weeks before viability, and in some cases before women even know they are pregnant. 

In the brief, Attorney General Herring and his colleagues highlight past cases in which the Supreme Court has repeatedly ruled that a state may not prohibit any woman from making the decision to terminate her pregnancy before viability. Additionally, the attorneys general point out that women’s health outcomes are advanced by meaningful access to comprehensive reproductive health care services, including abortion. The attorneys general refer to ample scientific evidence that has established the detrimental impact highly restrictive abortion laws have on women’s health outcomes. In other words, states’ interest in promoting women’s health is best served by ensuring access to abortion services.

Further, laws like Tennessee’s have a disproportionate impact on Black, minority and low-income women. Having access to safe, legal abortions leads to better health outcomes, particularly for Black and minority women who are disproportionately represented in Tennessee’s increasing maternal mortality numbers. Low-income women are also affected disproportionately by abortion bans because in states such as Tennessee that have not expanded access to Medicaid, uninsured women are eligible for coverage only while pregnant, and coverage ends 60 days after they give birth. These inequities are exacerbated by the small number of abortion providers in Tennessee and the long distances many women must travel to access abortion services. Attorney General Herring and his colleagues argue states can promote women’s health without curtailing the right to choose.

Despite Tennessee’s claims that its law is intended to limit discrimination against people with disabilities, such as Down syndrome, the coalition maintains combating discrimination should not come at the expense of women’s reproductive rights. States can promote medically accurate, unbiased information to help women make informed reproductive choices. Further, states can support people with developmental disabilities and their families by providing civil rights protections and delivering social and medical services.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

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