Tennessee Hearing Testimony On Total Abortion Ban
NASHVILLE, TN — Intent on a Supreme Court showdown over abortion, lawmakers in Tennessee are considering a total ban on the procedure that has been legal for more than 50 years. The state’s Senate Judiciary Committee is hearing testimony Monday and Tuesday on an amendment to a stalled “fetal heartbeat” bill that would completely ban abortion.
Tennessee’s fetal heartbeat bill, one of several that made it through state legislatures this year, was passed in the House, but stalled in the Senate. The judiciary committee, made up of seven Republicans and two Democrats, is expected to approve the amendment that directly takes on Roe v. Wade, the landmark 1973 U.S. Supreme Court decision that legalized abortion.
If that happens, what would become the most restrictive abortion bill in the country would come up for debate in the Tennessee Legislature in January 2020.
The viability of a fetus outside the mother’s womb is generally considered to be six weeks under well-established court rulings, but under SB 1236, sponsored by Lebanon Republican Sen. Mark Pody, viability would be defined at the moment of conception.
“Our bill is trying to do things in a different way,” Pody told The Tennessean. “A baby is a live human being and should be entitled to any of the constitutional rights as any other person.”
Republican Sen. Kerry Roberts, who serves on the panel considering the amendment, told CBS News the intent isn’t to immediately cut off women’s access to abortion, but to pass legislation that would directly challenge Roe v. Wade.
“We want a vehicle to lead the Supreme Court to consider, I hope, overturning or at least chipping away at Roe v. Wade,” Roberts told CBS.
The Supreme Court has twice refused to hear heartbeat cases. In 2013, North Dakota was the first state to succeed in enacting a heartbeat bill. It was challenged in federal court, but the nation’s high court refused to take it. That same year, Arkansas passed a similar law, but the Supreme Court declined to hear it as well.
The original heartbeat bill failed in the Tennessee Senate last spring and was sent to a summer study committee after conservatives disagreed on the best path to the Supreme Court.
Activists On Both Sides Of Issue
As the Senate panel hears testimony on Pody’s, protesters are expected to swarm the state capitol in Nashville. On one side are groups like the Tennessee Baptist Mission Board, which oversees ministry operations for a network of Southern Baptist churches. Its “I Stand for Life” campaign states supporters’ belief that “life begins at conception,” affording the unborn the unalienable rights of life, liberty and the pursuit of happiness.
“These Constitutional provisions are and should be sufficient to legally protect the lives of our state and country’s unborn children,” the campaign says. “Therefore, we, the undersigned Tennessee Baptists, urge all of our elected and appointed officials to exercise their full authority in such a way as to protect the lives of all people from the point at which God grants life (conception) to the point at which He brings it to an end (death).”
Busloads of pro-choice advocates were expected at the Capitol as well, including Healthy and Free Tennessee and the American Civil Liberties Union of Tennessee.
“This legislation drastically limits a woman’s constitutional right to make her own medical decisions and places an undue burden on a woman seeking legal and safe reproductive care. The courts long ago established constitutional precedent that the decision to terminate a pregnancy belongs to the individuals involved, not the government,” the civil rights group wrote on its website.
“By recklessly promoting legislation that is flatly unconstitutional, the sponsors of this bill gamble with taxpayer money, risking the state getting tied up in court for years while it expends scarce resources which could otherwise be used to provide Tennesseans with quality health care and education.”
Emboldened State Legislatures Look For Court Path
President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court has emboldened the anti-abortion camp, which sees its best chance in years to overturn Roe.\
Legislation that bans abortion after a fetal heartbeat is detected, usually around six weeks passed in Arkansas, Georgia, Kentucky, Louisiana, Mississippi and Ohio this year, and all face court challenges. So does Missouri’s eight-week abortion ban. The state of Alabama said in a court filing last week that U.S. Supreme Court precedent “regrettably requires” a federal judge to block its near-total abortion ban while a legal challenge wends through the courts.
Tennessee Lt. Gov. Randy McNally, a Republican who presides over the state Senate, told the chamber last spring that fetal heartbeat legislation was “constitutionally suspect” and that abortion foes would waste valuable political capital by passing it, giving “courts an opportunity to erase the progress we have made.”
“And a losing court fight would likely result in awarding taxpayer money to Planned Parenthood,” McNally said in a statement last spring. “Protection of the unborn is too important to risk taking a step backward.”
The 11-page amendment considered over the summer would provide exceptions only to save a mother’s life or to avert “serious risk of substantial or irreversible impairment of a major bodily function.”
Related: Why Unconstitutional ‘Heartbeat Bills’ Beat On
Sen. Katrina Robinson, one of only two Democrats on the Senate Judiciary Committee, told CBS she doesn’t think the proposed amendment passes constitutional muster. The hearings Monday and Tuesday are expected to be grueling, with at least 20 witnesses offering testimony.
“It’s idiotic,” Robinson, who describes herself as “pro-let-me-make-my-own decisions,” told CBS. “It’s completely unconstitutional and our legislator has no right to do this.”
She’s not hopeful any minds will be changed in testimony this week.
“These kinds of things, people already have their minds made up when they get there,” she told CBS. “The only thing I can try to do is make sure that the information on record is accurate.”
Elizabeth Nash, a senior state policy researcher at the pro-abortion access research group, the Guttmacher Institute, told CBS she’s not convinced the new effort in Tennessee will be any more effective than the heartbeat bills in reaching the Supreme Court. However, the amendment has a lengthy findings section, and “some courts, including the Supreme Court, have given quite a bit of deference to the findings sections.”
But Would The Court Hear It?
Even with a conservative majority on the court, Florida State University Law School Professor Mary Ziegler, whose areas of specialization include the legal history of reproduction and the Constitution, told Patch earlier this year that she doubts Chief Justice John Roberts is interested in taking on any abortion case.
In a surprise move earlier this year, Roberts sided with the Supreme Court’s liberal wing in a 5-4 decision that blocked a Louisiana law that would have required abortion providers to have admitting privileges at nearby hospitals. The vote put the law on hold pending a full review. Roberts offered no reason for his vote, but it signaled he was unwilling to disrupt a 2016 precedent that struck down a similar law in Texas.
Both Gorsuch and Kavanaugh voted to allow the law to take effect.
Ziegler said Roberts “has concerns about the legitimacy of the court and the ability to stay above the partisan fray that would make the court look political in a way that he doesn’t want.”
“Justice Roberts doesn’t want to take it on,” Columbia Law School professor Carol Sanger, an expert on constitutional law and reproductive rights, told Patch in March. “He’s a conservative, but a moderate conservative. … To be chief justice, if you are a constitutional lawyer, you have died and gone to heaven. He doesn’t want the Roberts Court to be known as the court that overturned Roe.”
For abortion foes, the message is that “even with a reconfigured Supreme Court and a sympathetic president in the White House, the court is interested in preserving its reputation of being non-partisan,” Ziegler said.
The bigger threats to abortion rights are the incremental changes states have made since Casey v. Planned Parenthood in 1992. The Supreme Court didn’t overturn Roe, as some abortion foes had hoped, but it was a seminal case that said states have an interest in potential life and can impose regulations on abortions from the moment of conception.
“If you’re pro-choice, you have to be vigilant about things that don’t look like obvious sweeping changes,” Ziegler said. “It’s more likely that you’ll see more slow, complicated, hard-to-process attacks on legal abortion — fetal pain laws, bans on abortion at or after the 20th week, beefed up mandatory counseling laws involving ultrasound, and laws that ban dilation and evacuation, the most common procedure after the first trimester.”
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