Tennessee, by a majority vote of both its House and Senate (68-17 in the former, 23-5 in the latter) has effectively spit in the face of the Supreme Court, blocking abortions that were already deemed legal in Roe v. Wade. Read about it in this CNN report (click on the screenshot below). In fact, with its new regulations, Tennessee may have banned almost all abortions, since the threshold criterion (the presence of a fetal heartbeat) can occur as early as six weeks—before many women even know they’re pregnant.
Both chambers of the Tennessee legislature are, of course, Republican, but I don’t know how the vote along party lines, though I can bet that nearly all Republicans voted for the bill.
If you remember, Roe v. Wade tossed the regulations to the states, but ruled that abortions cannot be prohibited in the first trimester (12 weeks), might be subject to “reasonable health regulations” in the second (12-24 weeks), and can be prohibited by the states in the third trimester (24 weeks-term), so long as exceptions are allowed to preserve the mother’s life and health.
The new law makes hash of that. As CNN notes:
The legislation — which prompted immediate legal action from several abortion rights groups — effectively bans abortion after a fetal heartbeat is detected, as early as six weeks, through 24 weeks into a pregnancy. The bill would make exceptions to protect the life of the woman, but not for instances of rape or incest. Abortions after viability, which is around 24 weeks, are already illegal in Tennessee except in cases where the woman’s life is in danger.
The Tennessee bill punishes abortion providers with up to 15 years in jail and a $10,000 maximum fine. It also prohibits an abortion where the doctor knows the woman is seeking an abortion because of the child’s race, sex, or a diagnosis indicating Down syndrome.
Under the bill, a doctor would have to inform the pregnant woman of the gestational age, perform an ultrasound and display the images, and check for a fetal heartbeat and play it out loud before proceeding. The woman can decline to view the images or hear the heartbeat.
The bill also requires abortion providers who provide more than 50 abortions a year to post notices that medication abortion involving a two-drug process could be reversed if the second pill has not been taken, though claims of potential abortion reversal are “not based on science and do not meet clinical standards,” according to the American Congress of Obstetricians and Gynecologists.
Six weeks is well before the fetus is viable, though of course that will inevitably change as medical advances allow us to keep embryos alive at earlier and earlier stages. But this bill, clearly designed to force a court test of abortion law, may also be designed to give judges some leeway to move the threshold earlier than the first trimester, though I don’t see the Supreme Court reversing its earlier decision. The notion that this bill will give higher courts some “wiggle room” comes from this part of the CNN report:
The Tennessee bill comes as several red states have passed restrictive abortion laws with the hopes of forcing a broad court challenge to the 1973 landmark Supreme Court decision in Roe v. Wadethat legalized abortion nationwide.At least eight other states, with Republicans in control of the legislature, passed abortion restrictions last year based on gestational limits. Judges have blocked all of the laws that have been taken up in state-level challenges.Tennessee Republicans acknowledged that this legislation is a “risk,” so to protect against legal challenges and if a court strikes down the six-week ban, the bill includes a “ladder” provision, which would generate new prohibitions, adding add two weeks of gestation if the previous bill is turned back by the courts.
What’s for sure is that courts will intervene immediately to block the bill from going into effect until it’s adjudicated by higher courts, as on its face it is unconstitutional. Indeed, according to the WBIR article below, legal challenges have already been mounted by the ACLU and Planned Parenthood. If appellate courts affirm the law, it will surely end up in the Supreme Court. But given the new “semi-liberal” Roberts court, which would have to reject the stare decisis of Roe v. Wade to change its decision, I’m not as worried about this as I used to be.