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Will Legislators Take a Consistent Approach to Abortion and Marriage?

Three bills filed in the General Assembly—two on abortion and one on marriage—point out how hard it is to find a consistent principle by which to govern. Here’s what I think needs to be done.

Two Approaches to Reversing Roe v. Wade

The two abortion bills would make it a crime for a physician to perform an abortion except in limited circumstances. All the legislative sponsors of the two bills want to see Roe v. Wade and its progeny overturned and authority of abortion matters returned to the states.

One bill is called the fetal heartbeat bill because it would make the criminal sanction and the limited exceptions thereto applicable once a child’s heartbeat is detected. The other bill would make the sanction applicable only after the U.S. Supreme Court “overrules, in whole or in part, Roe v. Wade” and its progeny, “thereby restoring to the states their authority to prohibit abortion.”

The fetal heartbeat bill seeks to push for a reversal of Roe by imposing a limit on abortion greater than any the U.S. Supreme Court has had to rule on in the past. The hope is that the new law will provoke a lawsuit that will, in time, wind its way to the U.S. Supreme Court and arrive at a time when the Court is willing to reverse Roe.

The second bill, known as a “trigger law,” imposes a limit on abortion only if the law of some other state is challenged and the decision, in that case, results in Roe being reversed.

There have been times when I thought the second approach was the only plausible approach. The Court was decidedly more liberal than it is today, the popular culture was not as pro-life as it today, and legislative bodies were not applauding infanticide legislation that outrages the sensibilities of an overwhelming majority.

If you think public sentiment can’t influence justices, then pretend you didn’t ever hear Justice Ginsburg say she thought America was now ready for same-sex “marriage.”

Pushing the Envelope on Roe

While the “trigger law” should be passed, these changes in the court and public sentiment have led me to think it’s also time to push the envelope and precipitate a situation that will require the U.S. Supreme Court to re-evaluate the constitutionally unsupportable rationale employed 40 years ago to support the decision in Roe.

Of course, the Supreme Court may continue to uphold the right to abortion, but it is very unlikely the Court will go in the direction of making it harder for states to enact abortion laws. The standard by which the constitutionality of abortion laws are now judged—Does the law unduly burden abortion?—is as low as it can go without the Court reducing the standard to the lowest possible standard—Does the law have a rational basis?

So, at this point, I don’t see much to lose other than simply losing. But not to try is a de facto loss anyway.

But notice this: Neither abortion bill seeks to “nullify” the Supreme Court’s rulings on abortions or tells prosecutors to ignore those rulings and prosecute abortionists anyway. Legislators know they can’t just ignore a bad decision by the United States Supreme Court.

Moreover, the fetal heartbeat bill is a testament to the fact that legislators know they must come up with some approach to abortion that has not been tested and ruled on yet in order to get a case back to the U.S. Supreme Court.

Legislators know that a bill treating Roe as a nullity would be slapped down as unenforceable by a federal district court and the decision upheld by the U.S. Court of Appeals for the 6th Circuit faster than Gov. Bill Lee can say to the state’s Treasurer, “Please pay the Planned Parenthood’s legal fees for having to sue our state.”

If legislators really believed they could nullify and ignore a U.S. Supreme Court opinion, surely legislators in our state would have done so any number of times between the 1973 Roe decision and now.

How This Applies to Marriage

But the reasons that lead legislators to look for ways to work around Roe and not just ignore it apply with equal force to the new bill on marriage.

That bill says, “No state or local agency or official shall give force or effect to any court order that has the effect of violating Tennessee’s laws protecting natural marriage.” Thus, it’s a bill purporting to “nullify” the U.S. Supreme Court’s constitutionally unsupportable decision on marriage in Obergefell v. Hodges, and it just won’t fly.

That’s not to say that nothing can be done about Obergefell. But the same principled approach to it must be taken as is being taken with the fetal heartbeat bill. I’ve been working on that principled approach and that work is almost done. Stay tuned.


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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Fetal Heartbeat Bill Pushed Back a Week

House Bill 108, sponsored by Rep. Van Huss, which would make it illegal to abort a baby once a fetal heartbeat is detected through ultrasound, has been pushed back a week in the House Health Subcommittee after an amendment was not filed in a timely manner. This bill would change the viability of the fetus from the current 24-week gestational period set from the Roe v. Wade Supreme Court decision to the first trimester, between six and 12 weeks.The attorney general opined this week that parts of the bill would be “institutionally suspect” under current Supreme Court interpretations of the U.S. Constitution. The companion bill in the Senate is Senate Bill 244, sponsored by Sen. Beavers.

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Jane Roe Dies

Norma McCorvey, also know as the famous Jane Roe of the 1973 Supreme Court case Roe v. Wade, recently died at 69 from heart failure. As Roe, McCorvey sued the state of Texas because abortion was illegal in the Lone Star State and she found herself with an unwanted pregnancy at the time. Despite being part of one of the most highly publicized cases, McCorvey not only did not abort any children once abortion became legalized, but she became a pro-life Christian. She leaves behind three daughters. “Though she was the Jane Roe of Roe vs. Wade, she worked hard for the day when that decision would be reversed,” the family wrote in a letter.

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Fetal Heartbeat Bill (SB 244 / HB 108)

BILL SUMMARY

Also known as the Fetal Heartbeat Bill, it bans abortion if a fetal heartbeat is detected.

BILL ANALYSIS

It is questionable whether this would survive a constitutional challenge under existing Supreme Court precedent, as states can ban abortion after “viability” which, legally, is considered to occur at 24 weeks.

Passage of the bill could result in a lawsuit that would reach the U.S. Supreme Court and provide a context in which Roe v. Wade could be overturned.

As amended, if an ultrasound is performed prior to an abortion, requires the reporting of certain information related to whether a heartbeat was detected and requires woman/patient be given the option to be informed of the results.

BILL SPONSORS

Pody in the Senate, Van Huss in the House

TRACK THIS BILL

Full Text: Senate Bill / House Bill

BILL STATUS

Signed by the Governor 5/3/18. Public Chapter 862.

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20-Week Abortion Ban Bill (SB 766/ HB 101)

BILL SUMMARY

Prohibits abortion after 20 weeks with exceptions for the life and health of the mother.

BILL ANALYSIS

Sixteen states currently ban abortion after 20 weeks. It is questionable whether this would survive a constitutional challenge under existing U.S. Supreme Court precedent, as states can ban abortion after “viability” which, legally, is considered to occur at 24 weeks.

Passage of the bill could result in a lawsuit that would reach the U.S. Supreme Court and provide a context in which Roe v. Wade could be overturned.

BILL SPONSORS

Beavers in the Senate, Weaver in the House

TRACK THIS BILL

Full Text: Senate Bill / House Bill

BILL STATUS

No action taken in the House or Senate.