Frequently Asked Questions About SJR 127 and
How it Relates to Partial-Birth Abortion in Tennessee
By David E. Fowler, Esq.
Question:Doesn’t Tennessee already have a law banning partial-birth abortion? Answer: No. The Tennessee law was modeled after a federal law that was ruled unconstitutional by the United States Supreme Court, so our law would not be constitutionally enforceable.
Question:But if the U. S. Supreme Court has now upheld a ban that has different language, why can’t Tennessee use this new, approved language to ban partial birth abortion? Answer: Tennessee’s Attorney General, who would have to defend a court challenge to that law, recently said even the new language would be “constitutionally suspect” under Tennessee’s constitution, meaning it would most likely be unconstitutional.
Question:Isn’t the federal ban on partial birth abortion sufficient to prevent any partial birth abortions in Tennessee? Why do we need to pass a “state” ban? Answer: No. The federal ban only applies when there is a link between the abortion and interstate commerce. Not all partial-birth abortions performed in Tennessee would have this connection. For instance if a Tennessee doctor performed a partial-birth abortion on a Tennessee woman, the federal law would not apply. Furthermore, absent a state law, Tennessee’s district attorneys could not prosecute a doctor who performs a partial-birth abortion.
"Why is Partial Birth Abortion Legal in Tennessee?"
In 2000, in the case of Planned Parenthood v. Sundquist, our state Supreme Court “found” a right to abortion in our state Constitution. As a consequence of this decision, our state’s informed consent law was struck down as well as our law that required women to wait 48 hours from the time they were informed to the time they had the abortion. In addition, the Court struck down the requirement that more risky third term abortions be performed in a hospital for the safety to women.
As a result, Roe v. Wade could be reversed by the United States Supreme Court tomorrow and abortion would still be a right in Tennessee.
But because of the strong language of our State Supreme Court, our state’s Attorney General recently issued an official opinion saying that a ban on partial birth abortion would be “constitutionally suspect.” Even though the United States Supreme Court has made it very clear that partial birth can be banned under the U.S. Constitution, the same cannot be said of Tennessee’s constitution. We need SJR 127 to pass so we can make it clear that our state constitution does not protect partial birth abortion and prevent our legislature from making it illegal.
Question:Why doesn’t SJR 127 provide an exception for abortions in the case of rape or incest or where necessary to save the life of the mother? Answer: The question implies that an “exception” is needed because SJR 127 bans abortion. SJR 127, by it’s very language, does not ban abortions. It merely says that our constitution does not provide a right to abortion. It essentially makes the constitution neutral on the subject of abortion.
Question:Does SJR 127 ban abortions? Answer: No, it only puts the Constitution back where it was before the Court changed it.
Question: Has Tennessee ever banned all abortions? Answer: No. Never. Not even the first statute on the subject passed in the 1800’s banned all abortions
Question:If SJR 127 is passed and then Roe v. Wade is overturned, would abortions be illegal in Tennessee? Answer: No. Current law which makes abortion legal during all nine months of a pregnancy would be the law unless a change is approved by a majority of both the House and Senate and approved by the Governor.
Question:If SJR 127 contains language saying that a woman has a right to abortion in the case of rape or incest would that not prohibit the General Assembly from taking any action in regard to those situations? Answer: No. The legislature can enact legislation that will define when those exceptions come into play. The real question is whether courts or legislative bodies should decide these kind of policy questions.
Question:What if the General Assembly were ever in the future to thwart the will of the people in regard to abortion policy? Answer: This question assumes that the Supreme Court cannot thwart the will of the people. By protecting partial-birth abortion it is clear that this assumption is wrong.
