April 16, 2021

Milbank Pro Bono Team Files Amicus Brief In Support of Reproductive Rights in Tennessee


A Milbank pro bono team led by partner Andrew Leblanc and including associates Julie Wolf, Alice O’Brien, and Kristina Lauria filed an amicus brief in the US Court of Appeals for the Sixth Circuit asking the court to affirm a federal district court ruling declaring unconstitutional a Tennessee law that imposes a mandatory 48-hour waiting period between consulting with a doctor and getting an abortion. The brief emphasizes the appellate court’s duty to defer to the factual findings and credibility determinations of the district court. The brief was prepared with Women Lawyers On Guard Inc. (“WLG”), a national nonprofit comprised of lawyers and professionals who advocate for women and who defend equality, justice, and opportunity for all.

In 2020, the federal district court ruled that a 2015 Tennessee law forcing patients to wait 48 hours after receiving in-person, state-mandated counseling to access abortion services violated the Due Process Clause of the Fourteenth Amendment. The ruling, reached at the conclusion of a four-day bench trial and after more than five years of litigation, was handed down in a comprehensive, 136-page decision that decreed that Tennessee’s law imposed significant logistical, financial, and other burdens upon a majority of abortion patients. The state of Tennessee appealed the ruling and petitioned the Sixth Circuit for an initial hearing en banc. The Sixth Circuit recently granted the state’s request for an initial hearing en banc, a rare decision that the dissenting Circuit judge has criticized as “procedural hopscotch.”

The brief submitted by Milbank and WLG argued that the district court’s factual findings and credibility determinations were grounded in an extensively developed record and were entitled to deference under the “clear error” standard of Federal Rule of Civil Procedure 52. Such deference, the brief argued, is integral to the structure of the federal judiciary and to the rule of law. The brief further argued that application of the clear error standard warrants affirmance of the district court’s decision. Failure to apply this standard would undermine the proper functioning of the federal judiciary by substituting the district court’s findings with those of the appellate court.

“As we emphasized in our brief, there is no ‘abortion exception’ to the clear error standard. The fact-finding of the district court should be given proper deference. Honoring that deferential standard reinforces the legitimacy of the judiciary and helps maintain the public’s confidence in our legal system,” said associate Julie Wolf.