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, in the spring of 2008, 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 Constitution.
As a result, Roe v. Wade could be reversed by the U.S. Supreme Court tomorrow, yet abortion would still be a constitutional right in Tennessee under our state constitution.
In response to this decision, the State House and Senate eventually approved what is known as Senate Joint Resolution (SJR) 127. The constitutional amendment proposed by SJR 127 will be on the ballot in 2014.
The proposed amendment, if approved by Tennessee voters, would once again make the state’s Constitution neutral on the issue of abortion, giving the legislature greater ability to enact abortion policy.
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.
Frequently Asked Questions about SJR 127
- 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 its very language. SJR 127 does not ban abortions. It merely states that our constitution does not provide a constitutional right to abortion. It essentially makes the constitution neutral on the subject of abortion as it was prior to 2000.
- 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 contained 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 could enact legislation that would define when those exceptions come into play. The real question is whether courts or legislative bodies should decide these kinds 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 its “interpretations” of the constitution and its court-created right to abortion. By protecting partial-birth abortion, as is the opinion of the state’s Attorney General, it is clear that this assumption is wrong as partial-birth abortion is not favored by a clear majority of Tennesseans.