It appears that some state Representatives are replying to citizens that “contrary to the statements” made on this web page and in the videos, Tennessee has a law banning partial birth abortions. And some responses by Representatives imply that the federal ban on partial-birth abortions makes a law in Tennessee unnecessary.

Do not be taken in by these arguments.

What about the federal ban? Isn’t it enough?

No, the federal ban is not enough.  The federal ban only applies to partial-birth abortions for which there is a connection to interstate or foreign commerce.  The actual federal law makes this very clear. Here is the pertinent language from Section 1531 of Chapter 74 of Title 18 of the US Code: "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion ... ."  By the very language of the law, there must  be a connection to interstate commerce for a partial-birth abortion to be banned under the federal law.

It is precisely because of the ambiguity of this connection to interstate commerce in the performance of any particular procedure that a state would pass its own law banning partial birth abortion. In fact, in the findings to the current federal ban, Congress made mention of the need for states to be able to ban partial-birth abortion, saying, "  In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions." 

It is just not honest to say that we know that every partial-birth abortion that could be performed in Tennessee would be banned by the federal law.

But my Representative says Tennessee already has a law banning partial birth abortion. You say we don’t. What is the truth?
As to the state law, yes, the legislature did pass a law banning partial-birth abortion in 1997. But that does NOT answer the question.  The Tennessee law was identical to the law passed in Nebraska that the United States Supreme Court struck down in Carhart v. Gonzalez in 2000 (known in legal circles as Carhart I).   So, three years after Tennessee passed the law that some Representatives want you to believe still bans partial-birth abortions, the United State’s Supreme Court said that kind of law was unconstitutional.

As you know from the experience of states after Roe v. Wade, it is not necessary for the United States Supreme Court have a lawsuit from every state striking down that state’s law for a law to be constitutionally unenforceable.   

For example, when Roe v. Wade  was decided, every state whose law was in conflict with Roe or whose law was identical to the one in Roe was, effectively, made to be unenforceable.   If a lawsuit in every state was needed, then why did every state go back and change their law?  Simple. Because they knew their old law was not enforceable!

A law that cannot be enforced is no law!  Since our law is identical to the one struck down in Carhart I, our law on partial birth abortion is unenforceable.  Thus it is NOT misleading to say, as we say on this web page, that a state has no law on a subject if that law is known to be unenforceable.  It IS misleading for your Representative to tell you that a law that cannot be enforced is a good law simply because the legislature has not gone to the trouble to repeal it.  No state District Attorney will prosecute a Doctor for performing a partial birth abortion when he or she knows that any indictment would be dismissed on the grounds of the US Supreme Court's ruling in Carhart I. 

Lastly, and think about this, if the legal language in the “new and improved”  ban on partial birth abortion that the United States Supreme Court upheld in 2007 is, according to our state Attorney General’s recent opinion, “constitutionally suspect,” in Tennessee, which no one denies that he said, why would we think the “old” language ruled unconstitutional in 2000 would be any less “suspect?”  If the “new” language is “constitutionally suspect” then you better believe the old language is as “constitutionally suspect” if not more so!
Do not be taken in by a Representative who is, because of this campaign, put on the spot and is looking for some high sounding response he or she thinks will make you go away and think that SJR 127 is not necessary.  Let them know you will not be fooled!

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