Pregnant woman and heart beat monitor

‘Fetal Heartbeat’ Bill Suffered from ‘Congenital’ Defects

Monday night, the so-called “fetal heartbeat” bill was put on life support and transferred to a meeting of the Senate Judiciary Committee this summer. There’s much not to like about what happened on this bill, particularly some of the parliamentary maneuvering. Lots of pro-life Tennesseans are incensed. But the bottom line is that the bill was birthed, legislatively speaking, with a ‘congenital’ political defect. Here’s the not-so-pleasant truth.

Defect No. 1—A Really Bad Start

The bill got off to a bad start. I’ve previously said why that is so, but the bottom line is that the version of the bill passed by the House was so poorly done that even I would not have defended it in court, let alone our risk-averse, jurisprudentially moderate attorney general.1

Unfortunately, a bad start is hard to overcome because, politically, a poorly written or poorly documented bill is the version that sticks in everyone’s mind as the bill goes forward.

As with people we meet, first opinions are hard to overcome, particularly when it comes to a bill’s constitutionality. Non-lawyer legislators, just like their constituents, don’t find it easy to understand why some words or phrases make a bill constitutionally defective, but others, perhaps not seeming that different, now make it constitutionally defensible.

Defect No. 2—Confusion and Overlooked Information

At 3:27 on Monday afternoon prior to the start of the 5:00 p.m. session when Senator Mark Pody’s motion to bring the bill to the Senate floor was to be voted on, I had a veteran senator call me. This senator thought the motion was to bring up the House version of the bill. He didn’t realize Sen. Pody had presented a completely different version of the bill to the Senate Judiciary Committee.

That’s a real problem when the thing the legislator thinks he or she is voting on is said to be unconstitutional by every lawyer you know. Sadly, I suspect there were other senators who were in the same position.

Moreover, I suspect few, if any, of the senators who were not on the Judiciary Committee had gone back to listen to testimony that had been offered to the nine members of that committee in support of the bill. I doubt any of them had read the written transcripts of the testimony I provided to the committee. I suspect they were going off what they’d been told about the constitutionality of the bill as it was a couple of weeks ago. (Refer to Defect No. 1, above.)

That sounds outrageous, but let’s be honest with ourselves. It’s hard to expect someone to meet with constituent groups off and on all day, attend committee meetings in between, go to constituent receptions in the early evening, and still have time to read the bills that are coming up the next day. To do that, a legislator has to work into the night. I did a lot of that, but session just grinds you down, and it becomes physically impossible to keep up.

That’s why lobbyists are important. They relay to legislators the latest information about a bill, make sure legislators know what they are voting on, and answer any questions legislators might have.

Defect No. 3—Going It Alone Is Hard

But, in the case of the “fetal heartbeat” bill, the organization that would normally handle that work on pro-life legislation was not in favor of the bill. It was not going to do anything to help toward the bill’s passage.

Given that our organization already had its agenda set before session started and this bill popped up, our one regular lobbyist had to follow through with the legislators we’d asked to work on our issues. Nothing will ruin a lobbyist’s effectiveness like leaving a sponsoring legislator hanging. We just had no capacity to take on the ton of work it takes to lobby another bill, particularly such a major bill.

I did put off the other work I had been directed to do by my board in order to provide Sen. Pody with a legal justification for his amended bill; however, the bottom line is that the House and Senate sponsors originally went forward with the bill knowing they had not sought any organizational lobbying support, and any presumption that they thought such would not be necessary proved wrong.

Defect No. 4—Leaving the ‘Heartbeat Bill’ Defenseless

In my effort to assume, for now, the best of the Republican senators, I told Sen. Pody that there was a sure measure of wisdom in not enacting a bill that the attorney general would not defend in court. This is particularly problematic since the only alternative in that case would be for the two Speakers to agree to hire outside counsel. Speaker McNally was not going to take my word on whether the bill was constitutionally defensible over that of the attorney general. I can appreciate that. Sen. Pody, to his credit, appreciated this problem and tried to get a letter from Liberty Counsel agreeing to defend the bill if passed, but there just wasn’t enough time.

Can the Defects Be Overcome?

Now, the question is whether those senators who on Monday professed their pro-life bona fides on the floor and those who have since professed them to disgruntled pro-life constituents will do what needs to be done this summer to make sure this bill is given every opportunity to pass in January and will garner their votes.

What has happened is that opponents of the bill this year have now laid their political bed among pro-life voters, and they will have to sleep in it.

Continuing to say, as some have done, that “this bill isn’t strong enough” or “this isn’t the right vehicle” is going to ring hollow with pro-life voters next year if they don’t attend the summer hearings to learn for themselves the constitutional bona fides of the bill or at least offer some of their campaign and leadership PAC funds to pay for the expenses of legal experts who will come testify in support of the bill.

But if they don’t do those things, then in my book they need to come up with their own different and better vehicle, or give a credible, legally demonstrative explanation for why any attempt to seek Roe’s reversal is a constitutionally foolish errand.

Time will tell as to how pro-life this Republican majority is in the Senate, but this year time was not on the side of those pro-life activists who wanted to be leaders in the effort to overthrow Roe v. Wade, not just wish the best to others.


NOTES

  1. I do not say that in a pejorative way. I think the attorney general would agree that my jurisprudential philosophy and understanding of constitutional interpretation and, particularly, my more limited view of the judicial power are more conservative than his.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Picture of crosses and a line drawing of a hand on the Bible with Tennessee flag stars in the background

Oath-Keeping in the State Senate at Eastertime

Most Christians will celebrate Easter this Sunday and on Monday, the Tennessee Senate will vote on a motion that would pull the so-called “fetal heartbeat” bill out of the Senate’s Judiciary Committee to the floor of the Senate for debate and consideration. It’s called a Rule 63 motion, and it is rarely made. But these two consecutive days will give us a window into our state senators’ views on oath-taking compared to God’s.

The Seriousness With Which God Takes His Oaths

To put our consideration of political oaths in perspective, it would be good to consider how God looks at oaths He makes. One might say that the whole story of the Bible is about oath-keeping, specifically the revelation of how God kept His oath to fulfill His covenant.

While the details and significance of God’s oath and covenant are often little discussed today, Easter is about a “new” covenant, a covenant made by God with Jesus, who the Apostle Paul described as the “last Adam” and the “second man” (1 Corinthians 15:22, 45–47; see also Romans 5:12–17). In Jesus, Christians believe God kept His oath to fulfill the blessings flowing from the fidelity of Adam and his descendants to the covenant God swore to them as well as the sanctions flowing from their lack of fidelity thereto.

There is more that could be said about that, but here is the larger point relative to Monday’s Senate vote: Christ’s crucifixion, resurrection, and ascension is a clear demonstration of how seriously God takes oaths.

The Oath Our Legislators Take

This is the oath our legislators take when they are sworn into office:

I [full name of legislator] do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state. (emphasis supplied)

To appreciate what the oath affirms, it needs to be put in the context of what it does not affirm and what I know is weighing on some senators’ minds.

Why do I know what may be weighing on their minds? Because a Rule 63 motion was before me back when I was a senator (1996, I think), and to my knowledge that was actually the last time such a motion has been made in the state Senate.

Wrongly Redirecting Delegated Authority

Whether it’s abortion or any other issue, one thing that naturally weighs on a senator’s mind in a situation like this is how his or her vote affects his or her relationship to the Speaker and the consequences politically and legislatively of bucking the Speaker’s wishes.

But the first thing to note about a senator’s oath of office is that there is no oath of fealty to the Speaker to do as he or she wishes or commands.

In other words, to cast a vote tinged with a desire to please, placate, curry favor with, or avoid the wrath of a Speaker and not on the merits of the issue is “ injurious to the people,” because it does “lessen [and] abridge their rights and privileges, as declared by the Constitution of this state.”

How? For one thing, the people from 32 of the 33 Senate districts did not vote to have the Speaker represent them. Voters do not delegate the authority they hold under the Tennessee Constitution to a legislator for that legislator to then make a de facto delegation of that authority to the Speaker to vote as he or she wishes.

But for the Christian legislator, the issue runs deeper: The legislator must consider, Do I believe that a certain relationship with the Speaker necessarily determines my effectiveness as a legislator from God’s perspective? Put another way, do I believe the Speaker is more sovereign over legislative matters on which I work and my political future than God?

The Quasi-Sanctity of the Committee System

Given the foregoing, to me the weightiest argument for voting against a Rule 63 motion is the one I heard as a senator—preserving the sanctity of the committee system.

The argument is that the committee process provides for orderly and due consideration of proposed legislation, and that the process will be destroyed if senators start filing a Rule 63 motion every time he or she is unhappy with a committee’s decision. There is a real element of truth to that argument, given that thousands of bills are filed each year.

Thus, Rule 63 motions should not be made for light or transient reasons. If either the issue or the exigencies of the situation to be addressed by the legislation were not compelling, then I would leave the action of the committee alone. The issue can be dealt with again in the next legislative session.

Is There an Oath to Uphold the Committee System?

However, in a senator’s oath of office, there is also no oath of allegiance to the committee system established by Senate rules by which his or her conscience is bound.

Moreover, Rule 63 exists in order that senators fulfill the purpose of their oath of office. By it, the Senate body as a whole recognizes that man-made rules for the administration of business should not stand in the way of some things, like, perhaps, protecting and securing God-given rights.

Not protecting and securing God-given rights and making the will of the majority of nine senators the absolute will of the whole body is, to me, “injurious to the people” and definitely has “a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.”

Would I Vote for the Rule 63 Motion?

Now that we all know why Rule 63 exists, here are the questions I would have to ask and answer for myself and before God, given the oath of office:

  • If protecting an unborn child’s right to life and asserting to the federal judiciary the reasons why the rationale employed by its decades-old abortion precedents no longer pertains is not important enough for the Senate as a whole to debate, what issue would ever be? After all, we are not just talking about medical procedures or the relationship between abortion rights and adult sexual liberty, but about the life and death of other, innocent human beings who get none of the due process assured by the Constitution.
  • Would passage of this bill add any weight and gravity to the push for Roe’s reversal by other states, given our knowledge that the U.S. Supreme Court can be highly motivated by cultural mood swings, as happened with reversing a 40-year old precedent in regard to same-sex “marriage”? In other words, are there any exigencies to be taken into here?
  • Should I depend on other states and their lawyers1 to have written their fetal heartbeat bills well and to have made the most legally compelling arguments? In other words, if their potentially feeble efforts are enjoined, I can count on their failure being thrown in my face next session and no one listening to my explanation as to why our bill and arguments are different and we should go forward anyway.

I can’t speak for others, but my answers would cause me to vote for the motion, because it would seem good to me to get started sooner rather than later the litigation process by which the inalienability of the right to life will be defended or denied.

And, at least to my mind, I would expect the God who created that life and bestowed that right to take very seriously my oath to defend its2 taking without being afforded due process of law.


NOTES

  1. Some senators might point to the fact that the attorney general is not sure the bill can be upheld as constitutional. Perhaps his arguments don’t win in court, but forfeiting on the front end the opportunity to win doesn’t seem to be a good alternative. The fact is the Judiciary Committee members and the Speaker were given a legal argument for the bill along with law review articles and other materials supporting that argument. If senators are waiting until some attorney general tells them reversal of Roe v. Wade is a slam dunk win so that there’s no risk of putting money in the pockets of Planned Parenthood’s attorneys, then that will never happen. We have judges because lawyers don’t agree on what the law is or should be.
  2. If our attorney general cannot or will not defend an injury to the fundamental right to life with every argument he can marshal, then I have no doubt the two Speakers will serve their respective bodies by finding an attorney who will defend what the majority of them approved. Otherwise, each body can replace their Speaker if they have the political will to do so. The point is, there are always options, even if some are difficult or unpleasant to take. On more than one occasion, I directly bucked the express will of the Speaker with whom I served, so this complaint falls on deaf ears with me.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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placing blaming with pointing fingers

Pointing Fingers and Placing Blame on the ‘Fetal Heartbeat’ Bill

I met with mixed emotions the Senate Judiciary Committee’s vote late Tuesday to defer a vote on the pro-life “fetal heartbeat” bill until more testimony could be provided during a summer hearing, after which the bill could be taken back up next January. The outcome really tested what I believe.

Restoring laws that respect God-given life and the creational design of marriage has been and will continue to be foremost on my policy agenda. But, to be honest, the push for passage of this bill was not on my agenda for this session. It was initiated by legislators, so I left them to handle their own business while I was focused on the other issue, marriage.

A Waste of Time?

But I pulled away from that work for the last week or so to help Senator Pody get the “heartbeat” bill worded right and develop a legal argument supporting its constitutionality. So, having been distracted from my planned work only to learn that at the end of Tuesday’s hearing there was never any intention of giving the proffered testimony any real consideration really magnified my disappointment and frustration.

By all appearances, I had wasted my time over the last week researching cases, preparing an extensive legal memorandum and my abbreviated oral testimony, and assembling and delivering to legislators a notebook of law review articles and other materials to back up my testimony. Moreover, Tennessee had foregone an opportunity to join a growing chorus of states passing “heartbeat” bills in an effort to force the U.S. Supreme Court into revisiting Roe.

As I thought about what happened, I wanted to point fingers and place blame, and there were a host of good targets.

Putting the Blame-Game in Perspective

But as I tried to make sense of it, another core belief registered in my mind that I knew had to be taken into consideration before I could assign blame—what I believe is true about God.1

Lying in the dustbin of modern evangelicalism, with its emphasis on the self and how we feel instead of what we think, is regular teaching about who God is from God’s own perspective.

Get a load of how the Westminster Divines defined God and you will see what I mean. (It’s long, but mentally luxuriate in some of its expressions):

God . . . is infinite in being and perfection, a most pure spirit, invisible, without body, parts, or passions, immutable, immense, eternal, incomprehensible, almighty, most wise, most holy, most free, most absolute; working all things according to the counsel of His own immutable and most righteous will, for His own glory; most loving, gracious, merciful, long-suffering, abundant in goodness and truth, forgiving iniquity, transgression, and sin; the rewarder of them that diligently seek Him; and withal, most just, and terrible in His judgments, hating all sin, and who will by no means clear the guilty. God has all life, glory, goodness, blessedness, in and of Himself; and is alone in and unto Himself all-sufficient, not standing in need of any creatures which He has made, nor deriving any glory from them, but only manifesting His own glory in, by, unto, and upon them. He is the alone fountain of all being, of whom, through whom, and to whom are all things; and has most sovereign dominion over them, to do by them, for them, or upon them whatsoever Himself pleases. In His sight all things are open and manifest, His knowledge is infinite, infallible, and independent upon the creature, so as nothing is to Him contingent, or uncertain. He is most holy in all His counsels, in all His works, and in all His commands.2

I suspect when some people read that, they will shudder and think how horrible such a God must be. I get that; I really do. After all, that kind of God crushes every proud thought we naturally have about how good, wise, influential, and significant we are. Self-esteem must deny such a God (which may explain why much of modern evangelicalism doesn’t talk much about all of that which is true of God).

But to others, it may have been their point of departure in understanding how amazing the mercy and grace of God really is toward us, because in coming to see who God really is, they realized that the infinitude of their insolence was justly damnable.

What This Means When Expectations and Providence Collide

Here, though, is my point: When these thoughts about who God is become precious to a person, they become an anchor to which that person can hold when the present outworking of God’s providence doesn’t make sense, and they can provide a peace that is, indeed, “beyond understanding” and “not such as the world can give” (Philippians 4:7; John 14:27).

I’ve still got a long way to go before these thoughts about God and how He works out His purposes become to me, in the words of the Psalmist, “better than life” (Psalm 63:3), but I was reminded of them after Tuesday’s vote and they bid me to let go of trying to place blame for what happened.

It was as if God said, “If you must point a finger, David, then point it at Me. I alone am big enough to bring out of what you see as defeat the victory that I have been planning to bring out of that bill all along. Do you trust Me in that?”

That was enough for me. Now back to my work on marriage.

Read David’s Three-Minute Testimony Before the Senate Judiciary Committee


NOTES

  1. What follows is not to disavow human responsibility and our need as voters to know who did what that we might discharge our solemn duty before God to hold accountable those to whom authority has been entrusted. In time I will know that story more fully, at which time you will know who was really doing what and, as best I can judge, why. Rather, today’s commentary is my attempt to hold in tension without denying one for the other both personal responsibility and God’s sovereignty as reflected in Acts 4:27-28.
  2. The Westminster Confession of Faith, Chapter II, Parts I and II.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Picture of the Memo related to the heartbeat bill and a sleeping baby

A Constitutionally Defensible Reason for Supporting the Pro-Life ‘Heartbeat’ Bill

What is going on in the legislature between the pro-life “fetal heartbeat bill” camp and the pro-life “trigger bill” camp makes no sense to a whole lot of ardent pro-life citizens. The bills seem to be caught up in some kind of power struggle between legislators. Here, I think, is the way forward.

The Overlooked Questions

I appreciate that some well-intentioned, pro-life legislators like Lt. Governor Randy McNally think the fetal heartbeat bill is too aggressive and defense of it will be a waste of taxpayer money and effectively put that money in the hands of Planned Parenthood and its attorney. I appreciate that other equally well-intentioned, pro-life legislators like Rep. Micah Van Huss and Rep. Timothy Hill think the trigger bill is too passive.

What I do not get is the fight between these two camps. Why not be aggressive in passing legislation that might lead to the reversal of Roe v. Wade if a constitutionally grounded defense of it is available? And why not also have the trigger bill in place in the event that legislative effort fails in court?

Why Supporting the Trigger Bill Alone Is Indefensible

The reversal of Roe has to be the ultimate goal of the pro-life community. If it is not, then “pro-life” is not the correct moniker for that community. Whatever that community is, I am not part of it.

But if the reversal of Roe is the goal, it will never happen unless some pro-life law is passed and a lawsuit challenging the constitutionality of that law goes before the U.S. Supreme Court.

Depending on some other state to pass a bill and defend it on solid enough constitutional grounds to cause Roe’s reversal is why many pro-life legislators and citizens find the trigger bill too passive.

They rightly ask: Why should Tennesseans forfeit their opportunity to be pro-life leaders in the effort to overturn Roe and, instead, be content with tag-along status, following some other state’s lead and trusting that state to do things correctly?

Don’t Ignore the ‘Evidence’ Calling for Roe’s Re-Examination

Now some in the if-we’re-not-sure-we-can-take-the-Promised-Land-let’s-stay-in-Egypt camp say that putting the issue before the U.S. Supreme Court now could result in the constitutional situation being made worse.

What?! When New York is applauding the fact that Roe makes infanticide constitutionally defensible and allowable, how could things get worse?1

If that’s what the law allows and the law does not call it murder, it is time to act and use that as evidence for a constitutionally grounded argument for re-examining Roe that some pro-life lawyers have allowed the U.S. Supreme Court to ignore for far too long.

Why Opposing the Heartbeat Bill Is Indefensible

For those legislators, lawyers, jurists, and citizens who have been held captive by the notion that rights are limited to those enumerated in the U.S. Constitution and Roe-like “emanations” flowing from them, it is easy to overlook the availability of the long-dormant Ninth Amendment as a constitutional defense of the heartbeat bill (per a proposed amendment in the Senate).

For the life of the unborn and the end of constitutionally protected infanticide, it is time to turn to the promise of life’s inalienability without due process of law that was bequeathed to us by our Founding Fathers in the Ninth Amendment.

The Ninth Amendment expressly prohibits a construction of enumerated rights in the Constitution that would “deny or disparage others retained by the people.”

But if that is a constitutionally given and protected right, its prohibition should apply with even greater force to rights that only “emanate,” using Roe’s terminology, from the Constitution as a result of the “reasoned judgment” of as few as five Ivy League lawyers.

What Does the Ninth Amendment Protect?

But what are these rights that Roe’s construction of the Constitution cannot deny to others?

Washburn University law professor Jeffrey Jackson advised the following in his 2010 law review article entitled “Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights”:

[T]hey were those rights that the framing generation believed they inherited from English constitutional and common law, with important modifications stemming from the experiences of American colonists . . . [I]f the goal is to determine what was the general consensus among Americans at the time of the framing and the adoption of the Bill of Rights, the formulation of rights in Blackstone’s Commentaries should form the baseline.2

And what did Blackstone, who was so influential among our nation’s lawyers and jurists, say?

He said there were three “absolute rights,” meaning those “such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.” They were “the right of personal security, the right of personal liberty, and the right of private property.”

Blackstone then expounded the meaning of the right of personal security as follows:

The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. . . . An infant en ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. . . .

This natural life . . . cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.

However, with respect to “personal liberty,” Blackstone said it “consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”3

In this light, it is clear that the kind of expansive liberty given by Roe to one human being to the fatal detriment of another human being is not that which the Ninth or the 14th Amendments protected.

Supreme Court Justice Clarence Thomas put it well:

As used in the Due Process Clauses, “liberty” most likely refers to “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.4

In other words, this is not some cockamamie legal theory I’ve dreamed up in my own head. Let’s use it!

Paying for Abortion or for Protecting Inalienable Rights?

I agree with those who, like Lt. Gov. McNally, rightly do not want to see taxpayer money go to Planned Parenthood for defending the poorly written and constitutionally indefensible House fetal heartbeat bill.

But now that he and the members of the Senate’s Judiciary Committee have been given a good amendment rewriting that bill and now know that a constitutionally grounded argument can be offered in support of it, they need to ask themselves this question:

Am I willing to spend $1 to $2 million—one-half of one percent of our budget—to defend the promise of the Ninth Amendment to our Constitution that not all rights come from positive law, that some rights are inalienable without due process of law, and that the most basic right of them all is life, without which any notions of liberty are meaningless?

I sure hope they would. If you ask me, it’s a small price to pay to try to preserve our constitutionally protected God-given rights compared to the cost paid by our Founding Fathers to secure them for us.

We owe at least that much to our courageous ancestors and to those not yet born who will follow us.

Read the Memo about the Fetal Heartbeat Legislation Testimony


NOTES

  1. “Cultural elites have more recently pushed to transform the super-liberty into a super-affirmative-entitlement—a claim-right that imposes upon all of us not just a duty to abstain from interfering in abortion, but also an affirmative duty to support and even subsidize the abortion industry’s practice. This evolution is illustrated in their insistence that taxpayers must pay subsidies to abortion providers and that people of faith and well-formed conscience must be forced to pay for abortifacient drugs.” Adam J. MacLeod, “Texas Lawmen and the Lawless Court,” Public Discourse, July 7, 2016. When that happens, but I suspect the pro-life lawyers will wish we had acted now in an effort to stave that off.
  2. Jeffrey D. Jackson, Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 Oklahoma L. Rev. 167, 171 (2010); see also, Obergefell v. Hodges, 135 S.Ct. 2584, 2632 (Thomas, J., dissenting)(“The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”)
  3. William Blackstone, Commentaries on the Laws of England, 119-120, 125-129 (Philadelphia: J.B. Lippincott Co., 1893).
  4. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584, 2632(2015).

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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A mom holding her baby

Just How Pro-Life Are Tennessee’s Republican Legislators?

I’m not sure I know what happened Wednesday when pro-life Republican House members split their vote and killed the pro-life bill that would impose more stringent limitations on abortion if the U.S. Supreme Court’s decisions on abortion are ever “overrule[d], in whole or in part.” I know our Republican legislators are, by and large, pro-life, and I’m thankful for that, but what is going on has made me, and many in the pro-life community, wonder just how deep those pro-life convictions run.

Was There a Substantive Problem with the Bill?

As noted, the limitations on abortion set forth in the bill, House Bill 1029, become effective upon the happening of a contingency—a change in the U.S. Supreme Court’s abortion jurisprudence—which contingency has resulted in it being called the “trigger bill.”

I support that bill. There is nothing wrong with that bill, in itself. Though a legal question about the bill was raised during the hearing on Wednesday, it was, in my view, more than adequately answered.

Assuming the adequacy of the answer was appreciated, there was no reason in terms of the substantive language of the bill relative to abortion for any solidly pro-life legislator to vote against it. Even the Republicans who voted against it would say that.

So What’s the Problem?

The issue, I fear, is being complicated by another pro-life bill that I also support in precept, the so-called fetal heartbeat bill, though, as I’ve written before, even I wouldn’t defend in court the version passed by the House.

Some pro-life legislators believe that a heartbeat bill, even if properly drafted and supported by legislative testimony, is too aggressive constitutionally. They fear it will be held unconstitutional by a federal court and $1–$2 million will be spent “in vain” trying to defend it.

Others believe the trigger bill is too passive, because it’s based on some other state having the courage and the fiscal resolve to pass and defend a law that might result in Roe being reversed.

For the ‘life’ of me, I don’t see the conflict between passing them both, assuming the Senate is willing to get the fetal heartbeat bill in as constitutionally a defensible posture as possible and the House will accept that fix.

What’s Wrong with Spending .005% of the State Budget to Seek Roe’s Reversal?

I have to ask: What is so wrong with the state making a one-time “investment” of up to $2 million to try to bring about the demise of Roe v. Wade in a total budget of more than $38.5 billion?

To put this supposedly “unconscionable” cost of defending the fetal heartbeat bill in perspective, pro-lifers need to understand that we’re talking about one half of one percent of the total state budget. The legislature has increased its own administrative budget for this year alone by way of more than $2 million, and, unlike paying a one-time legal bill, this amount will be recurring year after year.

In my opinion, legislators unwilling to spend such a paltry amount, comparatively speaking, on trying to defeat Roe are just not that pro-life.

The Trigger Bill Has Value, Too

Defeating Roe, however, is an uphill climb; thus, having the trigger bill passed and on the law books for when that day comes also seems to me a good, pro-life thing to do.

Predicting today that the legislature will be as strongly pro-life when Roe is reversed as it is now is presumptive. Passing the law now avoids that presumption and is based on a well-proven legislative axiom: It takes more work to pass a law when public opinion may be against you than to prevent the repeal of the desired law when it is already on the books. Get what you want while you can.

But some appear to be afraid that one bill will pass and not the other, and then those who “lose” will think the enacted policy is not the best one we could have had. So each “group” is trying to impose its will on the other.

Who Is Really Pro-Life?

I submit that those who are really pro-life should put aside this either/or perspective and pass them both and pass them with language that ensures their compatibility.

I am committed to doing that because trying to get Roe reversed while also making sure that if that effort fails, Tennessee has the most pro-life laws possible already on the books when that reversal finally comes, is to me the most pro-life position.

Fighting over which of the two strategies is best, when neither necessarily or logically excludes the other, is not very pro-life to me.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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