Tennessee effectively bans abortions

June 20, 2020 • 11:00 am

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.
Tennessee governor Bill Lee, who is a Republican, has ten days to sign the bill, veto it, or let it become law without signing it.

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.

h/t: Ken

29 thoughts on “Tennessee effectively bans abortions

      1. Yeah, things are status quo I guess. Some restaurants have opened, but I’m still not dining indoors. Do some take-out though. Visited with some family w/o masks…don’t know if that’s wise or not. Thanks for asking.

  1. In Tennessee they are pro NRA, pro life and anti everything else. So we’ll force you to have the kids then shoot them or starve them later. It’s all part of g*d’s plan.

    1. Yes, they are in favour of individual rights, unless you’re a pregnant woman in which case your rights are overridden by those of a cluster of cells the size of an orange pip.

    2. My thoughts exactly. Require all people, regardless of their income level or parenting skill, to give birth. If the kids have a hellacious life and commit crimes as teens or adults, just shoot ’em. The community involvement in causing this to happen due to low incomes and inequality are irrelevant.
      It makes me sick. I’ve seen too many of these kids. I’m a totally nonviolent person but, if I were violent, I know the kinds of people I’d want to wreak vengeance on.

      1. My thoughts too. I’m horrified by this. It sickens me that so many women still don’t have control of their own lives, let alone their own bodies. I bet if these men were the ones put in the same position as women who feel they have no option but abortion, things would be different.

    3. I never understood why it would be smart to prevent the kinds of people who have totally unplanned pregnancies from having an abortion.

      There are also legitimate concerns about fetuses with serious disabilities. I know a family whose baby was born prematurely with some birth defects. Much celebrated at birth, it became less and less appreciated after it reached male puberty. By no means evil, that person was low on conscientiousness, could not manage his life, make friends or keep a job. These problems were easily predictable. Better counseling could have prevented them.

  2. I wonder when the world population will impact these people. Are they willing to clothe feed and shelter the unwanted? Surely they don’t think it’s okay to put them on the streets uneducated.
    I’m aware of the population controls China attempted. Ultimately they’re not going to be the only country to do so. More and more farmland is being made into housing.
    We better find the yeast that feeds all pretty soon or find a planet to move to as well as the transportation to get there.
    I’m aware abortion is not the answer to these issues but the antiabortion attitudes are, in my mind.
    It’s time men got out of women’s business!

    1. ‘Are they willing to clothe feed and shelter the unwanted?”
      No, they are not.

      “Surely they don’t think it’s okay to put them on the streets uneducated.”
      Maybe not for whites…minorities, yeah, that’s ok.

      “It’s time men got out of women’s business!”
      Ain’t that the truth. It’s been thousands of years guys, give it a break.

  3. Tennessee Gov. Bill Lee (not to be confused with former Red Sox hurler Bill “Spaceman” Lee) was the one who proposed the abortion-reform statute, so there’s no doubt he’ll sign it.

    The Tennessee Lege took up the bill in an unexpected, last-minute legislative maneuver at half-past midnight on Friday morning.

    The federal district court for the Middle District of Tennessee in Nashville, and then the US Sixth Circuit Court of Appeals (whose jurisdiction comprises Tennessee among other states) will be bound by high-court precedent to enjoin enforcement of the Tennessee abortion restrictions, but I expect Tennessee will ultimately seek review from SCOTUS.

    I’m not as sanguine as our host over the prospects of the high court holding the Tennessee abortion bill unconstitutional. I think Chief Justice Roberts would probably like to dodge the issue by denying certiorari and letting the lower courts’ opinions holding the statute unconstitutional stand. Problem is, although it takes five of the nine justices’ votes to decide a case, it takes just four to grant cert to hear a case, meaning that the four conservatives can force the issue onto the Court’s docket without any help from Roberts.

    Roberts has made his objections to abortion well known in earlier opinions, though I think that, given his druthers, he’d rather keep chipping away at reproductive rights, as the Court has done in earlier cases, rather than overrule Roe v. Wade outright. But I also doubt that, given his concerns over the Court’s legitimacy, he wants to end up with the Court split 4-1-4, with the four liberals voting to uphold Roe, the four conservatives voting to overrule it, and Roberts himself writing alone to decide the case on some middle ground. Maybe he’ll get some unexpected help from Gorsuch (or even Kavanaugh) in either dodging the issue or charting a middle course.

    In the meantime, keep an eye on June Medical Services v. Russo, the abortion case on which SCOTUS heard oral argument in March, and on which a decision is expected by the rapidly approaching end of this term. It raises issues regarding restrictions on Louisiana abortion clinics that are indistinguishable from those in Texas that recently retired Justice Anthony Kennedy found unconstitutional in an opinion for the Court in Whole Woman’s Health v. Hellerstedt (2016). At the least, it should give us some insight into where Kennedy’s former law clerks, Gorsuch and Kavanaugh, stand on reproductive rights, on stare decisis, and on upholding Anthony Kennedy’s legacy.

    1. Thank you for your expert response. I do so appreciate the information that more knowledgeable people than I am bring to this blog.

      This particular issue is one that means a great deal to me as I was of child bearing age before Roe vs. Wade and know the consequences on friends, relatives and acquaintances. We must not go back there completely. We’ve gone way too far as it is.

      1. Dunno that I qualify as an “expert” on this particular area of the law, Rowena, but I’m not talking as far out of my hat here as I’m wont to do on most other topics. 🙂


      2. I’m a man and can’t begin to imagine what it is like for women being in that position, and, as they say, I can imagine quite a lot.

        Forcing unwanted pregnancy on women is one of the greatest evils around.
        I sincerely hope things don’t go back to the bad old days
        But they seem pretty bad in those states anyway.

  4. My apologies if I’m repeating myself. If these so called ‘pro-life’-ers (a misnomer) really cared about reducing the number of abortions, they would be on the barricades for the only way that has shown to actually do that:
    Good sexual education and easy availability of contraceptives.
    Since we haven’t seen them on the barricades for that, to put it mildly, the only possible conclusion is that their anti-abortion stance is motivated by something else than wanting to reduce the numbers of abortions.

  5. “Indeed, according to the WBIR article below, legal challenges have already been mounted by the ACLU and Planned Parenthood”

    Which is a ridiculous thing to do at this point as the legislation hasn’t even become law yet. And until it does become law the ACLU and Planned Parenthood have nothing to base any “legal challenges” on.


    You can’t legally challenge a “law” that isn’t a law yet.

    1. Is that really true?
      You don’t think the ACLU and PP have decent lawyers at hand.

      The article says,

      “Courts have canceled similar bills before. He said implementation likely will pause while courts decide.”

      Let’s hope someone with brains and empathy decide the issue, an issue that shouldn’t even be a matter for courts or legislature, instead of those with neither.

  6. 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.

    Roe is no shield any more. Planned Parenthood vs. Casey basically did away with it’s three-part structure, replacing it instead with the nebulous concept of ‘viability’. This was supposed to provide more flexibility as well as a more empirical grounding to the decision, but it’s IMO been a real headache for liberals, and IMO it’s the reason conservatives have been successful at pushing the time in which the state is allowed to interfere with the decision earlier and earlier.

    Now, the good news is that preventing abortion at fetal heartbeat is unconstitutional even against the more fuzzy standard of Casey, so if Roberts is looking to preserve precedent, this still breaks it. But in my opinion, Roe is practically dead, killed by two liberals (Sandra Day O’Connor, David Souter) as well as Kennedy, operating under the good intention of improving Roe but in reality opening the door to greater restrictions on a women’s right to choose.

    1. Sandra Day O’Connor was hardly a liberal. She Was essentially a Barry Goldwater-style Arizona conservative when appointed to the Court by Ronald Reagan in 1981. She drifted toward the center over the years (as many conservative justices are wont to do), but what put her in the middle as the Court’s “swing vote” was that the Court itself lurched to the Right with the appointments of four Republicans in a row immediately after her, including arch-conservatives Scalia and Thomas.

      1. She was conservative enough to hand the presidency to G.W. Bush but liberal enough to live to regret it.

        1. Justices can revisit and reverse an issue like “separate but equal” a half-century later, but there ain’t no do-overs in a presidential election.

          Just the mention of Bush v. Gore is enough to ruin my day — or maybe, at this late date, just put me in an hour or so of funk and dark brooding.

          1. My deepest apologies. I had no desire to muck up an otherwise wonderful day for you.

            Maybe this will cheer you a bit… Attendance at tRump’s Emptysburg Address was apparently around 6,200.

    2. Viability is almost text book case of a *legitimate* slippery slope. The outcomes are not immediately obvious: they depend on case-by-case details of how things are worded.

  7. Hm, there seems to be another “depends on the state of art” here. I usually say that I do not like “viability” compromises because they have weird effects (see above). But it seems to me now that “fetal heartbeat” is also potentially like that too. Presumably one detect cardiac tissue as soon as it exists in principle, and doesn’t CT spontaneously beat if kept in saline or the like? So what *detection* mechanisms exist? Are they going to have to use some very invasive procedure to look for this tiny amount of heart muscle?

    Of course then that’s where the slope is: does one strand of (?) myosin have a *beat*, rather than a contraction?

    Or does this all stand on what a “fetus” is? Which seems to me to suffer from the same vagueness as “conception”. Conception is a process and “fetus” (like “species” when it comes to same/different) has clear cases but also ones that are indeterminate. (Yes one can use stipulative definitions, of course, but I don’t know if they make sense here either.)

    Man, you biologists deal with such messy systems. 🙂 (Us in software security do too, but for other reasons. :))

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