National Partnership for Women & Families

In the News

Tenn. AG: Antiabortion-Rights Measures Could Still Be Unconstitutional, Despite State Amendment

Tenn. AG: Antiabortion-Rights Measures Could Still Be Unconstitutional, Despite State Amendment

February 18, 2015 — Tennessee Attorney General Herbert Slatery (R) in a legal analysis said that proposed state abortion restrictions could still be found unconstitutional, despite the passage of a ballot initiative (Amendment 1) specifying that there is no right to abortion in the state constitution, the Tennessean reports (Wadhwani, Tennessean, 2/17).

Background

The ballot effort was seen as a response from abortion-rights opponents to a 2000 state Supreme Court ruling that found that "a woman's right to terminate her pregnancy is a vital part of the right to privacy" under Tennessee's constitution and that any abortion restrictions should be subject to a "strict scrutiny" legal standard.

An increased focus on antiabortion-rights measures is expected in the Tennessee Legislature this session after voters approved the ballot initiative (Women's Health Policy Report, 1/14). Tennessee legislators have already proposed multiple bills that would restrict abortion, including a mandatory counseling bill (SB 13) and a measure (SB 50) that would require medication and surgical abortions to be performed at "licensed ambulatory surgical treatment center[s]."

Details of Legal Analysis

In a five-page legal analysis, Slatery wrote that even with the passage of Amendment 1, any new laws could not impose an "undue burden" on women seeking abortions, based on the standard set by the U.S. Supreme Court.

Slatery said that state laws that were in effect prior to the 2000 state Supreme Court ruling might not be upheld as constitutional if state lawmakers pass them again.

He noted that several antiabortion-rights measures in other states have been struck down under the undue burden standard, including laws instituting mandatory counseling, 48-hour mandatory delays and other restrictions. He wrote, "It is not clear whether (those laws) would survive an undue burden analysis under federal law." He added that courts have issued differing opinions in some cases.

Reaction

American Civil Liberties Union of Tennessee Executive Director Hedy Weinberg said, "The attorney general is saying 'don't rush to pass laws' that duplicate what was on the books prior to the 2000 Tennessee Supreme Court decision."

Meanwhile, state Rep. Rick Womick (R) said that he plans to alter his antiabortion-rights bill (HB 2) in response to the attorney general's analysis (Tennessean, 2/17). Womick's bill would require a woman to undergo an ultrasound one to three days before an abortion. In addition, the bill would mandate that doctors show the ultrasound image to the woman and describe it to her if she chooses not to look. It also would require technicians to make the fetal heartbeat audible (Women's Health Policy Report, 12/16/14).

Womick said he plans to release a new version of the bill that would maintain the ultrasound requirement, while mandating that providers ask women whether they would like to see the ultrasound images or have the fetal heartbeat made audible (Tennessean, 2/17).