Family Action Council of Tennessee: Constitutional Amendment SJR 127

Constitutional Amendment SJR 127

The following pertains to questions 4 and 5 on FACT's 2008 Legislative Candidate Survey, regarding a constitutional amendment to allow voters to decide whether the state constitution should be neutral on the issue of abortion.

Background

In 2000, in the case of Planned Parenthood v. Sundquist, our state Supreme Court “found” a right to abortion in our state Constitution. In addition, the court determined that any legislation related to abortion be subject to the highest level of “judicial review,” known as strict scrutiny. As a practical matter, this level of judicial scrutiny gives greater protection to abortion than is required under the U.S. Constitution.

As a consequence of this decision, our state’s informed consent law was struck down as well as our law that required women to wait 48 hours from the time they were informed to the time they had the abortion. In addition, the Court struck down the requirement that riskier later-term abortions be performed in a hospital.

In addition, this spring the state’s Attorney General issued a formal opinion stating that a ban on partial-birth abortion, using the same language approved last year by the U.S. Supreme Court, would be “constitutionally suspect” under Tennessee’s Consitution.

As a result, Roe v. Wade could be reversed by the U.S. Supreme Court tomorrow, yet abortion would still be a right in Tennessee.

The amendment, known as Senate Joint Resolution 127 and adopted by the state Senate in the 105th General Assembly, would, if put on the ballot and approved by Tennessee voters, once again make the state’s Constitution neutral on the issue of abortion, giving the legislature greater ability to enact abortion policy. SJR 127 was defeated in a House Health Subcommittee. The language of SJR 127 is as follows:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

Since 2000, SJR 127 has passed the Senate four times. Each time it has failed in the House Health Subcommittee.

Frequently Asked Questions about SJR 127

What does SJR 127 have to do with partial-birth abortion?
Because of the strong language of our State Supreme Court, our state’s Attorney General issued an official opinion this year saying that a ban on partial-birth abortion using the same language recently approved by the United States Supreme Court would be “constitutionally suspect” under Tennessee’s constitution.
Does Tennessee already have a law banning partial-birth abortion?
No. The Tennessee law was modeled after a federal law that was ruled unconstitutional by the United States Supreme Court, so our law would not be constitutionally enforceable.
But if the U. S. Supreme Court has now upheld a ban that has different language, why can’t Tennessee use this new, approved language to ban partial-birth abortion?
Tennessee’s Attorney General, who would have to defend a court challenge to that law, opined that even the new language would be “constitutionally suspect” under Tennessee’s constitution, meaning it would most likely be unconstitutional.
Isn’t the federal ban on partial-birth abortion sufficient to prevent any partial-birth abortions in Tennessee? Why do we need to pass a “state” ban?
No. The federal ban, by its own terms, only applies when there is a link between the abortion and interstate commerce. Not all partial-birth abortions performed in Tennessee would have this connection. For instance if a Tennessee doctor performed a partial-birth abortion on a Tennessee woman, the federal law would not appear to apply. Furthermore, absent a state law, prosecution would depend on the politics of the U.S. Attorney’s office. Without a state law, Tennessee’s district attorneys could not prosecute a doctor who performs a partial-birth abortion. Edward Whalen, former U.S. Supreme Court Clerk has written an article explaining this in great detail.
Why doesn’t SJR 127 provide an exception for abortions in the case of rape or incest or where necessary to save the life of the mother?
The question implies that an “exception” is needed because SJR 127 bans abortion. SJR 127, by it’s very language, does not ban abortions. It merely says that our constitution does not provide a right to abortion. It essentially makes the constitution neutral on the subject of abortion.
Does SJR 127 ban abortions?
No, it only puts the Constitution back where it was before the Court changed it, making it neutral on the issue of abortion.
Has Tennessee ever banned all abortions?
No. Never. Not even the first statute on the subject passed in late 1800’s banned all abortions.
If SJR 127 is passed and then Roe v. Wade is overturned, would abortions be illegal in Tennessee?
No. Current law which makes abortion legal during all nine months of a pregnancy would be the law unless a change is approved by a majority of both the House and Senate and approved by the Governor.
If SJR 127 contains language saying that a woman has a right to abortion in the case of rape or incest would that not prohibit the General Assembly from taking any action in regard to those situations?
No. The legislature can enact legislation that will define when those exceptions come into play. The real question is whether courts or legislative bodies should decide these kind of policy questions.
What if the General Assembly were ever in the future to thwart the will of the people in regard to abortion policy?
This question assumes that the Supreme Court cannot thwart the will of the people. By protecting partial-birth abortion it is clear that this assumption is wrong.
Would voting to bring SJR 127 violate the House Rules of parliamentary procedure?
No. Actually, House Rule 53 allows the entire House, by vote of 2/3 of its members to “recall” a bill from a committee and place it on the calendar for consideration by the entire House of Representatives. In addition, House Rule 74 allows for any rule to be suspended or modified by a vote of 2/3 of the members. In other words, the rule that requires bills to be approved by a committee before they can be put on the calendar for consideration by the entire House of Representatives can be “suspended.” The rules are suspended many times during the session for a variety of reasons. One should ask whether, if recalling a bill from a committee or suspending the Rules were “destructive” to good order and process in the House, then why would these two rules exist. The fact is that sometimes the process does not work and some issues are so important that a small number of members should not prevent the entire body from considering something. That is why Rules 53 and 74 exist.
Will voting to bring SJR 127 to the floor violate/undermine the committee system? If we vote to do this, won’t every legislator be wanting to bring his or her bill to the floor when a committee does not approve it?
To prevent this from happening, the rules require that 2/3 of the members vote to allow a bill to come to the floor without first being approved by the committee system. Legislators know that getting 2/3 of the members to do this is hard and therefore the members will not be “overrun” by such motions. And besides, if 2/3 of the members want to hear every bill on the floor, then the supermajority should not be held captive by a small minority.
I took an oath to uphold the state's Constitution. Since our state constitution provides a right to abortion, would voting for SJR 127 violate my oath?
The Constitution provides a way to amend the Constitution. SJR 127 is following the constitutional process for allowing the Constitution to be changed. Voting for SJR 127 is not a violation of the Constitution.

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