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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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shape of United States filled in with American flag on striped background with words national news

Poll Shows Pro-Life Message Is Winning Across Political Parties

A new survey released on Tuesday conducted annually by Marist in partnership with the Knights of Columbus shows that the majority of Americans want abortion to be restricted. Seventy-five percent of Americans across political affiliations—Republicans, Democrats, and Independents—want abortions to be limited to the first trimester and an equal percentage oppose tax-payer funding of abortions overseas.

“Two-thirds of Americans want Roe revisited to allow for state regulation of abortion or to ban it altogether,” adds Knights of Columbus CEO Carl Anderson in a statement.

Results of the Marist poll are even more encouraging than Gallup’s May 2018 poll that confirmed 53 percent of Americans oppose all or most abortions.

Incidentally, the March for Life, an annual pro-life event, is this Saturday, January 19, in Washington, D.C., with Vice President Mike Pence giving the address at the 37th annual Rose Dinner.

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Pro-Life Pocketbooks Speak Louder Than Words

If you vote Republican, then you’ve probably noticed that no Republican runs for office in Tennessee who is not pro-life. So, how might a voter in a Republican primary know which Republicans are pro-life in word or deed? Here are some thoughts when it comes to the Republican gubernatorial primary.

Last week I urged readers to be wary of endorsements by political candidates, particularly those from outside the state, and provided links for those who wanted to verify the veracity of what I said. But what about PAC endorsements?

The Value of PAC Endorsements

Unlike endorsements by politicians, organizations with PACs generally only support those who are true to their particular cause. The candidate an organization endorses may be horrible on every other issue you care about, but that organization believes the candidate to be strong on its issues.

The Shortcoming of PAC Endorsements

One shortcoming with a PAC is it tends to favor an incumbent who has a strong voting record on that PAC’s issues over political newcomers. Newcomers may prove to be good to their word, too, but a “tie” almost always goes to the office holder whose word has been backed up with a strong voting record.

There is a good reason for this. Many newcomers who talk strong on the campaign trail wilt under the spotlight when it’s time to vote on a bill. I’ve seen it so many times.

How That Applies to the Governor’s Race

When it comes to the Republican primary for governor, National Right to Life and Tennessee Right to Life have both endorsed Diane Black. What does that mean if you’re a pro-life voter?

Given my 17-year working relationship with Tennessee Right to Life on the pro-life amendment on Tennessee’s ballot back in 2014 (Senate Joint Resolution 127 that became Amendment 1), its endorsement doesn’t just mean that it believes Diane will do the right thing on pro-life legislation and administrative policies if push comes to shove; it means Diane will be in the foxhole with them when the abortionists start shooting.

Of course, that doesn’t mean that Randy Boyd, Beth Harwell, or Bill Lee are not pro-life or that they would not be strong when pro-life legislation is under consideration, but except for Harwell, Lee and Boyd have no track record upon which an endorsement over someone like Diane could be made.

Is there, then, any additional way to evaluate the seriousness of the pro-life claims of Black, Boyd, Harwell, and Lee? Yes.

Show Me the Money

There’s an old saying, “Put your money where your mouth is” and, so, I took the time to review all the financial reports showing contributions in support of the biggest pro-life political issue and campaign in the history of our state—Amendment 1—to see who among the gubernatorial candidates put their money where their pro-life mouths are.

Now, I am mindful of the “widow’s mite,” and I appreciate that a $100 contribution to the Amendment 1 ballot measure campaign may be more sacrificial for some people than $50,000 from another. But when I consider that Randy Boyd and Beth Harwell have so far put over $10 million and $3 million, respectively, in personal funds into their campaigns to be governor, I find it interesting that their names don’t show up on any of those contribution reports. Not one time; not one personal dollar.

Perhaps Boyd didn’t know about the largest pro-life issue and campaign in the history of our state, but that shows a significant level of disconnectedness from the pro-life cause he professes, if you ask me, particularly considering he lives in Knoxville, which has one of the strongest and most active Right to Life chapters in the state. That chapter was extremely active in the push for Amendment 1.

Beth Harwell’s PAC did give $1,000 on October 28, 2013. The Harwell PAC is funded by some individuals, but mostly lobbyists and their PACs, not Harwell personally. The balance in the Harwell PAC at the time of her $1,000 contribution was more than $560,000. Thankfully, the amount given to Amendment 1 was greater than the $873 she spent from her PAC on “flowers/gifts” during that same reporting period.

Oh, it’s the same PAC from which Harwell spent $175,000 back in February bolstering her name recognition for her gubernatorial campaign by touting her service as Speaker.

As to Bill Lee, his company did contribute $1,000, and he personally contributed another $10,000.

Diane Black made a personal contribution of $250,000.

Hopefully, pro-life Republicans now have more information by which to judge the pro-life bona fides of Republican candidates running for governor.


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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.