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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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Tanco v. Haslam Final Order and silhouette of a man with a question mark

Meet My Tennessee Political Hero

Political heroes are hard to come by these days. But there is a current officeholder in our state who tops my short list. In a lineup of random politicians, you might never suspect he’d be a political hero. Let me introduce you to him and tell you what he did.

Unlikely Looking Hero

My political hero is 77-year-old Bradley County Commissioner Howard Thompson. His formal academic education ended with his high school diploma (which only matters if your name is Lori Loughlin or Felicity Huffman). He drives a pick-up truck as part of his flea market business, not as a political “common man” ploy.

What makes him a hero is that he was willing to do something out of the ordinary that he knew would be misunderstood by most, including his fellow commissioners, in order to defend what he believes.

What My Political Hero Believes

Lots of Tennesseans and elected officials, including, I suspect, most of his fellow commissioners, believe like Commissioner Thompson. He believes:

• marriage is a relationship between a man and a woman,
• both the U.S. Constitution and the Tennessee Constitution should be upheld,
• the dual sovereignty of state and federal governments established and protected by those constitutions is important, and
• the separation of powers taught in eighth-grade civics means courts don’t make laws.

What Makes Him a Hero

But the difference between Commissioner Thompson and other political officials was his willingness to take a measured, strategic, and non-revolutionary state-militia-at-the-courthouse approach to defending those beliefs.

As a “lowly” county commissioner and citizen, he did the only thing he could do to defend his beliefs (and probably those of most of his constituents)—sue his own county’s clerk for violating the Tennessee Constitution by issuing a license for marriage to two people of the same sex.

Before you think that qualifies him for quack status, not hero status, read on. His understanding of basic civics and willingness to act on his beliefs is what separates him from other politicians.

Thompson Understood What Most Didn’t

Commissioner Thompson is a gentle, humble soul who would never impugn the integrity of his local county clerk or his fellow commissioners, but he understood the constitutional gravity of what began taking place the day the U.S. Supreme Court announced its decision in Obergefell v. Hodges.

That decision purported to say that the 14th Amendment prohibited state laws that defined a marriage as a relationship between a man and a woman.

Even if this conclusion is accepted, Commissioner Thompson intuitively knew that our whole state was acting lawlessly. The lawsuit proved him right, even though the presiding judge dismissed it last week.

Tennessee’s Constitution Is Being Ignored by All but the Commissioner1

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

Page 2 of the Tanco Final Order and Permanent Injunction, signed by Judge Trauger.

He was proved right by the Final Judgment and Permanent Injunction issued by federal district court Judge Aleta Trauger after and as a result of the Obergefell decision in the same-sex “marriage” lawsuit that had been filed against the state of Tennessee, Tanco v. Haslam.

The second page of Judge Trauger’s order says, in full:

Article XI, section 18, of the Tennessee Constitution and Tennessee Code Annotated § 36-3-113 are invalid under the Fourteenth Amendment to the United States Constitution to the extent that they exclude same-sex couples from the recognition of their civil marriage on the same terms and conditions as opposite-sex couples, when their marriage was lawfully entered into out of state.

The “to the extent” language means the injunction applies only to the provisions of Tennessee’s laws that govern the state’s recognition of marriages “lawfully entered into out of state” when that out-of-state couple moves here.

Thus, the injunction does not apply to the provisions of the Tennessee Constitution and the referenced statute, Tennessee’s Defense of Marriage Act, that govern what laws the state can have for the licensure of marriages, the licenses being issued by Tennessee’s county clerks.

That means those provisions of our state’s constitution limiting the power of the state to license anything other than a marriage between a man and a woman are still in force. And those provisions will lawfully be in force until some judge enjoins their enforcement or the people vote to repeal the amendment.

Since neither of those things has happened, all of Tennessee’s county clerks are going beyond the statutory authority they have been given by issuing a license for a relationship called a marriage that is defined without regard to the biological sex of the parties.

And they are doing so in violation of the still-applicable provisions of Tennessee’s Constitution.

When Did Courts Start ‘Making Laws’?

I know some will foolishly say, “But the U.S. Supreme Court ruled. The Court legalized same-sex marriage. You can’t deny same-sex couples their rights.”

Such is foolish because they, including many lawyers and judges, have forgotten what Commissioner Thompson remembered from his eighth-grade civics class, “Courts can’t make laws.”

If a license for this new understanding and form of marriage is to be issued by the state, then the state’s legislative body must authorize somebody to issue it. Judges can’t, and county clerks weren’t.

By the express terms of Tennessee’s Constitution, county clerks’ duties can only be “prescribed” by the General Assembly.

But the General Assembly has never prescribed to our county clerks any duty to issue a license for a relationship defined without regard to the biological sex of the parties, even if U.S. Supreme Court now wants to call that kind of relationship a marriage.

If people would just think about it for a moment, they’d realize that being authorized by statute to issue a license for a relationship defined in terms of the biological sex of the parties is fundamentally and logically not the same as having authority to issue a license for a relationship defined without regard to the biological sex of the parties.

Commissioner Thompson understood these basic constitutional principles and he stood up for them, or at least he did until the judge said he didn’t have a right (“standing” is the legal term) to bring suit to stop this lawlessness.

Not in Vain

But, Commissioner Thompson, don’t despair. In the coming months, I trust you will find that your heroics have not been in vain.

If you now appreciate what Commissioner Thompson did and want to be part of stopping the lawlessness, let me know by sending an email to FACT Director of Communications Laura Bagby at laura.bagby@factn.org and be sure to put “Thompson” in the email subject line. Just don’t expect all your friends to consider you a hero if you do.

NOTES

  1. Actually, Commissioner Thompson’s pastor, Guinn Green, understood and joined him in the lawsuit, as did a couple of pastors and citizens who filed a similar lawsuit in Williamson County. But Commissioner Thompson is the only elected official among them and therefore the only one that risked any political heat.

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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Silhouettes of judges and ballot box and photo of Attorney General Slatery

The Most Important Legislation You Haven’t Heard About

Tennesseans understandably tend to put their political focus on hot topics such as abortion legislation. But little attention has been given to what I think is one of the most important pieces of legislation going through the General Assembly, a proposed amendment to Tennessee’s constitution governing the office of the Attorney General and Reporter. Few realize the influence of that office or how little influence anyone has on that office.

The Influence of the Office on the State’s Judges

Many do not recognize the influence the attorney general has. Some are aware of high-profile things such as the current attorney general’s unwillingness to defend the state’s sovereignty protected by the 10th Amendment relative to the federal refugee resettlement program. But what they may not appreciate is the influence of the attorney general on the state’s judges.

For example, two years ago, a Knox County judge rightly ruled that the word “husband” in a statute didn’t include a woman’s wife in a same-sex “marriage” between two lesbians. A woman is never a husband and vice versa.

But the attorney general’s office came into court and argued that the word “husband” only meant spouse. This, according to the attorney general, was necessary in order to accommodate the U.S. Supreme Court’s new understanding of marriage in which male and female are irrelevant.

The judge uncritically accepted the attorney general’s argument. To interpret “husband” in a manner that includes a “woman” is judicial legislation pure and simple, and it was done at the behest and urging of the attorney general.

The Influence of the Office on Public Policy

But the attorney general not only has significant influence among judges, he can also influence a change in public policy through his opinions.

Last month, in keeping with the attorney general’s acquiescence to the new norm of confusing biological sex with the psychological construct of gender, the attorney general issued an opinion stating that when the legislature 19 years ago used the word “gender” in a statute instead of the word “sex,” the legislature intended to include today’s modern concept of gender identity. Fat chance of that, given that I was there and remember the discussion and vote on the bill he misconstrued.

But the opinion was requested by Democrats as a means of finding out whether they needed to pursue or forego legislation that would have specifically added “gender identity” to that statute. Why would this opinion signal to them that their legislation was now unnecessary? Because they know attorneys and judges will use the opinion to usher into our law the idea that “gender” and “sex” are not only the same thing, but also the idea that gender includes gender identity.

The Influence of the Office on the Legislature

Lastly, the favorite tactic of those seeking to kill legislation is to get an attorney general’s opinion as to whether the proposed legislation is constitutional. The attorney general’s opinion may be accurate, but too many legislators, most of them being non-lawyers, are too quick to accept his or her opinion as the truth. However, they may not appreciate that someone with a different jurisprudential and constitutional philosophy might issue a different opinion.

Nevertheless, good legislation may not be approved. After all, the thinking goes, why pass a law if the person tasked by law to defend the law says, in advance, he or she won’t defend it?

The Current Lack of Accountability by the Attorney General

Given the influence of the attorney general and his or her office, accountability would seem to be imperative. Yet there is an utter lack of such due, in large part, to the provisions in Tennessee’s constitution.

The state constitution provides that the attorney general is to be appointed by the members of the state Supreme Court. Tennessee is the only state in the union to use this method. In more than 40 states, the attorney general is elected through a statewide contested ballot. Moreover, the justices in Tennessee vote by secret ballot.

Since voting out state Supreme Court justices who vote in a bad attorney general is impossible due to the fact they are subject only to retention elections, neither the attorney general nor anyone else can be held accountable for his or her decisions and actions.

The lack of any accountability is a recipe for troubles mentioned above.

What the Amendment Would Change

The proposed amendment, Senate Joint Resolution 1, would change this process in three ways. Firstly, instead of just appointing someone to the office, the justices would only nominate someone. Secondly, the justices would have to vote for the nominee in public. And thirdly, a majority of the House and a majority of the Senate would have to confirm the nominee.

This is the process the people approved relative to open positions on the Tennessee Supreme Court. I saw it work well when current Justice Page was nominated by former Gov. Haslam. Legislators asked good questions and pressed for answers.

To me, this is a good means of providing accountability, though indirect. Citizens can quiz the candidates for the legislature on what kind of person they would want to hold this office and then hold them accountable if they don’t put that kind of person in the office.

Direct election of an attorney general, on the other hand, has proved to be a stepping stone to a run for higher office, and, consequently, the attorney general’s decisions become even more political. When politics becomes paramount to re-election or to the office next to be sought, the correct legal analysis and decision often give way to what is politically expedient.

Conclusion

It is always good to give attention to legislation that will make a particular change in regard to a particular matter, but we dare not ignore those matters of government structure that may influence or determine the outcome of the legislation on which we are focused. We might say, as with any house, what is allowed to happen in the House (and Senate) will depend on the infrastructure that underlies it.


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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