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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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David Fowler gives his testimony before the Senate Judiciary Committee in support of the "fetal heartbeat" bill on April 9, 2019.

David Fowler’s Testimony in Support of the ‘Fetal Heartbeat’ Bill

FACT President David Fowler gave his three-minute testimony before the Senate Judiciary Committee at the Tennessee Capitol on April 9, 2019, in support of the “fetal heartbeat” bill, SB 1236. The bill, sponsored by Sen. Mark Pody, prohibits abortions from the point a fetal heartbeat is detected.

Mr. Fowler’s Three-Minute Testimony

Chairman Bell and members of the Judiciary Committee,

My name is David Fowler. I am a 1983 graduate of the University of Cincinnati College of Law, taught an introductory course in the philosophy of government and jurisprudence at Bryan College, and was a member of this Committee from 1994 until 2006. Since then I have served as the president of both Family Action of Tennessee and The Family Action Council of Tennessee.

The proposed amendment rests on two legal arguments. The first challenges prevailing abortion precedents in regard to what constitutes viability. It offers not only a commonsense understanding of viability, but also a scientifically objective measure of viability that does not make rights dependent on advances in modern medicine. When infanticide is being applauded and the Court’s precedents appear to make such constitutionally permissible, I think it is time the Supreme Court re-examine the question of viability and consider using a diagnostic measure of viability instead of a prognostic one. This amendment would allow that issue to be considered.

But I would also like to commend to you a constitutional argument in support of this bill based on the question, what rights and whose rights are protected by the Constitution? This argument puts at issue for the first time in the abortion context whether the rights possessed by individuals depend for their existence in the first instance only upon positive legal enactments and judicial pronouncements and whether, if belief in such “inalienable” or “absolute” rights still exists, the people have authorized state governments to protect and make more secure those rights.

If our rights come only from decisions of the United States Supreme Court, then our great Republic will die from ingesting an understanding of judicial supremacy that our Founding Fathers feared. The only antidote—given Congress’ abdication of its duties—is for you to exercise the counterbalancing powers of federalism and dual sovereignty established by our Constitution to assert not just the state’s interest in life, but on behalf of unborn human beings their rights protected and preserved by the Ninth Amendment1 and put their rights at juxtaposition against an expansive view of liberty that goes beyond the clear intent of our Constitution2 and is manufactured by judicial pronouncements.

The importance of this argument was driven home by three things in the 6th Circuit’s decision last week upholding Kentucky’s ultrasound law. First, that is the Court to which any appeal concerning the constitutionality of this bill would go. Second, by its use of the words “unborn child” or “unborn life” a total of 30 times in the first 17 pages of its opinion, the Court appeared to signal to those with ears to hear that it knows abortion takes the life of a child, another human being. And this bears on the third reason the Beshear case is important.

Beshear cites with approval and describes in the following way the 8th Circuit’s en banc approval of a North Dakota informed consent law,

The statute required physicians to give patients a written statement providing, among other things, “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being” . . . .3

Our Circuit knows we are speaking not only of a “whole . . . human being,” but one who is also a “separate . . . human being” from his or her mother.

Either the Ninth Amendment, which protects unenumerated common law rights, needs to protect the right to life of a child en ventra se mere, as the common law put it, or the Supreme Court needs to say, as the late Justice Antonin Scalia said about where the balance should be drawn between liberty and life in right to die cases:

It is quite impossible . . .that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely . . . that they will decide upon a line less reasonable.4

Urging the Court to leave the issue of abortion to the states actually restores one of the “blessings of liberty”5 that was lost in Roe. As Justice Kennedy wrote in 2011 on behalf of a unanimous Court in Bond v. United States6, “‘freedom is enhanced by the creation of two governments, not one,’” because it ‘secures to citizens the liberties that derive from the diffusion of sovereign power.’”7

In my opinion, for this Body and the Courts to disregard fundamental rights at common law—here the right to life—in favor of only positively declared rights and then only in abortion-related decisions would be to do what we were all forbidden to do by the very last words in Casey v. Planned Parenthood, “retreat from interpreting the full meaning of [our Constitution] in light of all of our precedents.”8

I conclude by paraphrasing only slightly what Obergefell’s majority said when it was presented with a new rights claim, as I’m here suggesting,9 “When new insight reveals discord between the Constitution’s central protections and a received legal stricture [which I submit Roe and Casey are], a claim to [life in relation to] liberty must be addressed.”10

Making that claim, as de facto guardian ad litem on behalf of the voiceless human beings killed by abortion, is exactly what I submit this bill does.

I would urge you to vote for this bill.

NOTES

  1. “The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
  2. “If the Fifth Amendment uses ‘liberty’ in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534-535 (1884). Indeed, this Court has previously commented, ‘The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.’ Ibid. And this Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using ‘liberty’ to mean freedom from physical restraint. . . . That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses.” Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 2632 (Thomas, J., dissenting)
  3. Case No. 17-6151/6183, p. 16.
  4. Cruzan v. Director, Mo. Dept. of Health, 497 U.S 261, 293, 110 S. Ct. 2841, ___(1990) (Scalia, J., dissenting)
  5. Preamble, United States Constitution
  6. 564 U.S. 21, 131 S.Ct. 2355 (2011)
  7. Bond, 131 S.Ct. at 2364
  8. Casey v. Planned Parenthood, 505 U.S. 833, 901, 112 S. Ct. 2791, ___ (1992). This is the full context for the quotation: “Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents.” (emphasis added)
  9. The quote that follows is remarkably similar to what Blackstone said about the historical swings between protecting and undermining the fundamental law: “The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.” William Blackstone, Commentaries on the Laws of England, 119-120, 125-129 (Philadelphia: J.B. Lippincott Co., 1893)
  10. Obergefell, 135 S. Ct. at 2598.

Download the PDF version of David’s testimony

Read the Press Release

 

This is the slide presentation that accompanied Mr. Fowler’s April 9, 2019, testimony to the Senate Judiciary Committee in support of the "fetal heartbeat" bill and, after reading his testimony, may help you “picture” what he was saying.

This is the slide presentation that accompanied Mr. Fowler’s April 9, 2019, testimony to the Senate Judiciary Committee in support of the “fetal heartbeat” bill and, after reading his testimony, may help you “picture” what he was saying.

PDF of The Sphere or Universe of All Rights

How the Senators Voted

Sen. Mike Bell proposed a motion to move the bill to summer study. The motion to move the bill to summer study passed 5-3 with one abstention. Here is the breakdown of the votes:

  • Those who voted “yes” included Sen. Mike Bell (R-Riceville), Sen. Todd Gardenhire (R-Chattanooga), Sen. Sara Kyle (D-Memphis), Sen. Jon Lundberg (R-Bristol), Sen. John Stevens (R-Huntingdon).
  • Those who voted “no” included Sen. Janice Bowling (R-Tullahoma), Sen. Katrina Robinson (D-Memphis), and Sen. Dawn White (R-Murfreesboro).
  • The absention (present not voting) was from Sen. Kerry Robertson (R-Springfield).

Watch the Video of the Discussion on SB 1236

The entire discussion of SB 1236 can be found by clicking on the video player above and then going to timecode 2:42:10 – 4:10:13. David Fowler’s testimony is at timecode 3:04:50 – 3:10:50.

 

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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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silhouette of a baby and a heartbeat

Is the Fetal Heartbeat Bill Viable?

The bill making it a crime for a doctor to perform an abortion (except under limited circumstances) once a fetal heartbeat is detected is “Exhibit A” among the perils of lawmaking and constituent advocacy. I spent six years of my life as a state senator and another eight years as a citizen working to rid our state constitution of a court-created “right” to abortion, so I get the dynamic. I believe in the bill’s cause and the good intentions of those legislators and citizens who support it, but here’s why I just can’t be among them at this point.

The Difficult Job of Being a Legislator

Being a legislator is hard. Being a constituent can be even harder because most people don’t have any clue what being a legislator is like.

The public needs to appreciate that most legislators are not “schooled” in the law. It’s not that only lawyers should serve in the legislature, but state lawmakers are hemmed in between two constitutions—the U.S. Constitution and the state constitution—that they must understand.

That can be a problem because many legislators don’t really know the real specifics of those constitutions. I am not saying that to their shame. The same was true for me; I didn’t even read the state constitution until after I got elected. But as a lawyer I had a huge head start in understanding it, not to mention a huge head start with the U.S. Constitution I’d studied in law school. Constitutions are not easy reading, because their words often have certain legal connotations and historical contexts unfamiliar to most legislators and citizens.

Moreover, legislators have to recognize that whatever they think the constitutions allow or prohibit is subject to the check and balance of a judicial branch that, for better or worse, can hold that a law violates one or both of those constitutions and enjoin the law’s enforcement.

Complicating things more is the fact that the public may know even less about the two constitutions and may be under-informed with respect to the content of the legislation it supports and on which it demands action. The legislation may be poorly drafted and inadequately supported in the legislative record, which is what courts often look at to determine what the legislature was trying to do (think in terms of the importance of a doctor’s records in defending a doctor in a malpractice lawsuit). The public doesn’t understand that, if passed anyway, the law will be shoved back into everyone’s face by a court and for good reason.

Given the convergence of complicated legal and constitutional issues and pressure for action from a well-intentioned, but often under-informed constituency, being a statesman is hard. It’s hard to say to them, “Hold on. Let’s slow down. Let’s get this right even if it takes longer.”

Is a ‘Slower’ Heartbeat (Bill) Healthier and More Viable?

I remember former Sen. Bob Rochelle, often a protagonist of mine, saying, “Sometimes the slower you go the faster you get there.” In other words, the goal should be to get it right, not get it done, particularly when you know you’re going to wind up in court.

I have commended this approach to some of the key legislators relative to the heartbeat bill without any apparent success. So, were I still a legislator, I would have had to raise these questions on the floor and abstained from voting in favor, as some others did.

Among the several reasons is the fact that the majority in Planned Parenthood v. Casey, the last major abortion case, outlined what the Court would look for in future cases in order to justify reversing a precedent like Roe, one that lawyers, judges, and citizens have relied on for decades and one that has woven its way into our social fabric. There was nothing in the heartbeat bill or the legislative record that addressed those points.

To me, that’s a bit like ignoring what my Dad said I had to do in order to go to the Senior Prom and then asking him if I could go any way. With my Dad, asking would be pointless (and perhaps unhealthy), and I suspect it will be so with the heartbeat bill and the U.S. Supreme Court.

What’s Important to the Court Must Be Important to Pro-lifers

Let’s be honest, the United States Supreme Court cares greatly about the public’s perception of its institutional integrity. Belief in its integrity is the only means by which the Court can “enforce” its opinions. When the U.S. Constitution appears to “change” because there is a new justice on the Court, the Court becomes very concerned that it will look political (which it too often is, but it tries to keep up the pretense that it’s not). That’s why the Court set forth guidelines for reversal in the Casey case.

Institutional integrity is a huge issue for Justice Roberts. It explains some of Roberts’ quirky decisions of late. A bill and a legislative record that ignore this consideration will not get Justice Roberts’ support, and on abortion, the pro-life community cannot lose his support.

Understanding this unavoidable check on the legislature’s powers and how the Supreme Court works in regard to long-established precedent cannot be ignored. If it is, the odds go way up that the law will meet with judicial defeat and be enjoined.

What Would I Do?

If it were me, I would start over. Over the summer and fall, I would work on addressing all the issues that are out there. I would work with medical doctors, constitutional scholars, sociologists, and even metaphysicians and psychologists who can and will provide testimony relative to medical science, constitutional law, cultural impacts and considerations, and the implications of worldviews that connect or disconnect our objective essence as living beings from the subjective of “personhood,” respectively.

In other words, I would craft a bill and create a legislative record upon which pro-life lawyers could take on the United States Supreme Court with every potential weapon at their disposal.

Without this kind of serious work being done (and it’s too late to do it this session), I fear the heartbeat bill won’t be judicially viable. But if it passes, I hope, for the sake of the unborn, I am wrong.


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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