After a decade-long struggle when it seemed at times like a lost cause, the seminal goal of Tennessee’s social conservatives — a pro-life amendment to the state constitution — is about to emerge from the legislature with a super-majority of supporters.
The resolution, so familiar to political insiders that it’s known by its legislative file number — SJR127 — was trapped for years in the House committee system under Democratic rule. Now, with Republicans in unassailable control of state government after last year’s elections, it is winning overwhelming backing, and even many Democrats are jumping on the bandwagon.
The state Senate voted 24-8 last week for SJR127. With pro-choice Democrats realizing resistance was futile, there was only 30 minutes of debate. Four Democrats — including Nashville’s Sen. Douglas Henry, a longtime foe of abortion rights — joined Republicans in voting yes. If the House also approves the resolution by a two-thirds majority this session — as seems all but certain since SJR127 won 76 votes in the 99-member House even last year before the landslide elections — then the measure will go on the ballot for voters to decide in the 2014 elections.
If voters agree to amend the state constitution, abortion still would be legal in Tennessee as long as Roe v. Wade stands as the law of the land. But SJR127 would strip abortion rights from the state constitution, nullifying a 2000 Tennessee Supreme Court ruling that struck down certain abortion restrictions in state law and outraged those in the pro-life movement. It would open the door to new and ever-more restrictive state laws, and pro-life lawmakers likely would push the envelope to test how far the courts would permit the state to go in limiting federal abortion rights.
Pro-lifers celebrated Senate passage by bashing what they called the state’s liberal-activist judiciary and promising to enact only “commonsense” abortion laws if voters agree to amend the state constitution.
“This resolution was a long time coming,” said Sen. Mae Beavers, the Mt. Juliet Republican who is sponsoring SJR127. “I am very pleased it has finally passed. It will enable Tennessee to begin the process to restore the right of the people to decide through their elected legislature regarding what Tennessee law should be regarding abortions within the bounds of federal court decisions. The only way to restore the people’s voice is to change the constitution and give the legislature authority to write commonsense laws.”
Senate Speaker Ron Ramsey said, “For years, liberal Democratic parliamentary maneuvering has thwarted passage of this resolution, which has enjoyed strong support from majorities both inside and outside the legislature. I am proud to be a part of the pro-life Republican majority that will finally bring an end to judicial activist usurpation and put this measure to a vote of the people.”
The state Supreme Court ruling that spawned SJR127 was Planned Parenthood v. Sundquist. In a 4-1 decision, the justices found the Tennessee constitution contains a stronger right to privacy — and thus to abortion — than does the U.S. Constitution.
It was the first time the court addressed the abortion issue squarely. In its analysis, the court traced its expanding view of liberty in the state constitution — in cases beginning with the father’s right to destroy the seven frozen embryos created with his ex-wife and including the right of consenting adults to engage in homosexual relations. A logical extension, the justices decided, is a woman’s right to terminate her pregnancy.
“The provisions of the Tennessee constitution imply protection of an individual’s right to make inherently personal decisions, and to act on those decisions, without government interference,” the court ruled.
“A woman’s termination of her pregnancy is just such an inherently intimate and personal enterprise. This privacy interest is closely aligned with matters of marriage, child rearing, and other procreational interests that have previously been held to be fundamental. To distinguish it as somehow non-fundamental would require this court to ignore the obvious corollary.”
The court struck down three restrictions on abortion that had been enacted by the legislature: a 48-hour waiting period, so-called informed consent by the woman, and a requirement that all abortions in the second trimester be performed in hospitals rather than outpatient clinics.
The proposed constitutional amendment states: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
Pro-life lawmakers insist they don’t intend to try to outlaw abortions. Instead, they say they would merely make the Tennessee Constitution neutral on the issue and allow the legislature to enact restrictions they say are favored by most of the public.
But pro-choice organizations say stopping abortions is the ultimate goal. They predict that once the state constitution is amended, lawmakers will move immediately to enact a slew of unreasonable impediments to abortions.
“What they really want to do is make it nearly impossible for women to access abortion,” said Jeff Teague, president of Planned Parenthood of Middle and East Tennessee.
He pointed to other states with Republican legislative majorities where abortion restrictions are at the top of the agendas. Included are “informed consent” bills that create a script that physicians are required to read to women seeking abortions. In Indiana, the bill originally required doctors to tell women that abortions cause breast cancer.
“These scripts are full of misleading and false information,” Teague said, adding that a bill in another state would force physicians to tell women that abortions lead to mental illness.
In Indiana, Oklahoma and elsewhere, legislatures have considered bills stating that a “20-week-old fetus is capable of feeling pain,” and therefore any abortion beyond that time would be outlawed. The time of fetal viability generally is considered to be 24 weeks, which is when abortions become illegal in most states. In Tennessee, abortions are allowed until the time of fetal viability.
Tennessee lawmakers in the past have proposed forcing women to look at ultrasound pictures of their fetuses before having abortions. Sen. Stacey Campfield, R-Knoxville, has introduced legislation in previous sessions to force women who have abortions to obtain death certificates for the fetuses.
Members of the pro-life movement are confident voters will agree to amend the constitution. But opinion polls suggest the outcome is uncertain. In 2009, the last time the MTSU poll asked questions about abortion, 52 percent of Tennesseans said abortion should remain legal under the circumstances in which it is now allowed.