But legislators pass ‘heartbeat’ abortion ban despite misgivings expressed by bishops, Tennessee Right to Life
By Dan McWilliams
The state House of Representatives passed a “heartbeat” abortion ban March 7 despite the concerns expressed by the Tennessee state bishops and Tennessee Right to Life that it would not pass legal muster and despite the presence of a stronger measure making its way through the legislature that would take effect with the reversal of Roe v. Wade.
The heartbeat bill would ban abortions after a fetal heartbeat is detected. In a joint statement Feb. 26, Bishop Richard F. Stika of Knoxville, Bishop J. Mark Spalding of Nashville, and Archbishop Joseph E. Kurtz, who was serving as administrator of the Diocese of Memphis, expressed their doubts about the bill.
“The heartbeat bill has been passed in various forms across the country and has been consistently struck down by state and federal courts alike for being unconstitutional,” the bishops wrote. “In these legal cases, a victory is handed to the pro-abortion plaintiffs, and we must remember that every pro-abortion victory in the courts further strengthens the Roe v. Wade precedent and makes Roe that much more difficult to overturn.
“Given the field of legal realities that we must consider, we believe it would not be prudent to support the heartbeat bill knowing the certainty of its overturning when challenged, in addition to the court-ordered fees that would be paid to the pro-abortion plaintiffs. Instances like these remind us that we must be prudent and support other prolife pieces of legislation that stand a better chance of being upheld in the courts and, possibly, become the vehicle that forces the U.S. Supreme Court to overturn Roe once and for all.”
Instead, the bishops pledged their support for the Human Life Protection Act introduced in the state legislature Feb. 13.
“Given the unjust laws recently signed in New York and Virginia, we pray urgent support will be given to the Human Life Protection Act being considered within the legislature that would automatically ban abortions in Tennessee should the Roe v. Wade Supreme Court decision be overturned,” the bishops concluded.
The Human Life Protection Act (HLPA) is much more legally acceptable than the heartbeat bill, said Brian Harris, president of Tennessee Right to Life.
“In contrast to heartbeat bills which have been struck down in each state where it has passed, the Human Life Protection Act mirrors statutes in other states that have been on the books for years without legal challenge,” he said. “Such laws establish that upon the reversal of Roe v. Wade, in whole or part, a state’s protective pro-life statutes will be immediately restored. This is key in Tennessee where our pre-Roe abortion regulations were stripped from state law books in the 1980s.
“Similar protection acts have existed for years in Louisiana, Mississippi, North Dakota, and South Dakota without legal challenge. Another was recently passed in Arkansas, and others are presently moving quickly in Kentucky, Missouri, Oklahoma, and Texas. As states like New York prepare for the overturn of Roe v. Wade by passing laws to remove any restrictions for abortion, Tennessee also seeks to prepare for that eventuality by ensuring that we have in place protections for our children, women, and girls.” There is hope that Roe will get struck down or amended, allowing the HLPA to go into effect, Mr. Harris said. “Observers on both sides of the abortion debate recognize that Roe v. Wade has no constitutional foundation, was wrongly decided, and cannot stand the test of time,” he said. “They also recognize that the cultural momentum is on the side of life. That being the case, and with recent appointments to the U.S. Supreme Court by a president who vowed to appoint only pro-life justices, the right-to-life movement is clearly closer than ever to the goal of significantly altering, if not outright overturning, the 46-year-old decision and its progeny.
“This underscores, however, why it is so important to put the right cases before the courts at the right time with the right judges so that advocates for the unborn do not unintentionally end up building additional pro-abortion case law that must be stripped away before we can achieve our ultimate goal of overturning Roe and returning the matter to the states.”
A Nashville Tennessean article stated that the HLPA has not received the same momentum in the legislature as the heartbeat bill. That comes despite the state bishops’ favor of the HLPA.
“Tennessee Right to Life and other pro-life advocates throughout the state are deeply grateful for the principled pro-life leadership of the Catholic bishops,” Mr. Harris said.
“This is true not only on this current matter but especially during the long and difficult fight to pass pro-life Amendment 1 to the Tennessee Constitution in 2014. Bishop Stika and the late Bishop [David R.] Choby of Nashville remain heroes for many of us who helped to lead the amendment campaign. Their determination and sacrifice played a significant role in the ultimate success and victory that other states have followed.
“While the state House has now passed the heartbeat bill, it was with the votes of many who share the same concerns of an unsuccessful legal challenge. Passage of the heartbeat bill is far from assured, and there is a growing sense that leadership in the state Senate is becoming increasingly uncomfortable with the possible unintended consequences of passing a law that is going to be struck down and the possibility of building additional case law in support of Roe.”
There is no “question as to whether there will be a lawsuit or whether or not the heartbeat bill will be struck down,” Mr. Harris said.
“Planned Parenthood joined the ACLU of Tennessee in early March announcing their commitment to file suit on day one if the bill is passed,” he said. “In the other states where the heartbeat bill has been passed and signed into law, not a single child or mother was saved from abortion because the bill never went into effect. Instead, the laws were immediately enjoined and ultimately overturned by the federal courts.
“Upon appeal to the U.S. Supreme Court, not a single justice asked for the heartbeat ban to be brought forward for review so the lower-court rulings in opposition stand. As a result, hundreds of thousands of taxpayer dollars were awarded to Planned Parenthood in legal fees and court costs. Passing unconstitutional bills may make some feel good for the moment, but, as a movement, we must take a long view and look carefully at the possible harm of unintended consequences.”
The more important question about the heartbeat bill is whether it will “be enforceable and upheld as constitutional,” Mr. Harris said.
“And tragically the answer remains no, not now,” he said. “The goal of pro-life legislation should always be to protect the largest number of vulnerable persons with the least risk to existing legal safeguards. Tennessee Right to Life has every confidence that Governor [Bill] Lee is a sincere pro-life advocate and that he will look carefully at all the factors and probable risks to existing pro-life policies before making a final judgement on the heartbeat bill.”
State Sen. Dolores Gresham (R-Somerville) and state Rep. Susan Lynn (R-Mount Juliet) introduced the HLPA that, upon reversal of Roe v. Wade, would restore full legal protections for unborn children.
“With the possibility that there might soon exist a majority on the U.S. Supreme Court willing to give states greater latitude on the matter of abortion, we want to be proactive to ensure that Tennessee continues to lead the way to the fullest possible protection for human life,” Sen. Gresham said.
Rep. Lynn added: “It has always been the priority of Tennessee’s pro-life movement to restore protection to the largest number of unborn children and women in our state. While states like New York are moving to strip any limits to abortion—even at the moments just before birth—Tennessee wants to be known for protecting our children.”
Unlike some other pro-life proposals, the HLPA (SB 1257/HB 1029) avoids constitutional challenges by taking effect upon reversal, in part or in full, of Roe v. Wade by the U.S. Supreme Court. It restores Tennessee’s pre-Roe law and prohibits abortion except to save a mother’s life.
“Medical technology and understanding have come so far in the past decades since Roe was decided, including the development of ultrasound imagery,” said Stacy Dunn, vice president of Tennessee Right to Life. “Such images make clear the humanity of unborn boys and girls, and it’s our responsibility to do everything constitutionally possible to protect them.”
Tennessee Right to Life urges concerned pro-life citizens to contact their state representative and state senator to urge their active support and sponsorship of the HLPA.