Beginning Oct. 15, Tennessee voters will be deciding whether to approve an abortion amendment. But to understand why it’s on this fall’s ballot, we have to rewind 14 years ago to a court case that defined abortion rights in Tennessee.
Actually, first, let’s set the time machine back even further — to 1883. It’s about two decades after the end of the Civil War. Chester Arthur is president. Albert Einstein turns 4 years old. The Brooklyn Bridge opens to the public.
And in Nashville, the legislature is passing the state’s very first abortion law:
Every person who shall administer to any woman pregnant with child, whether such child be quick [moving within the womb] or not, any medicine, drug or substance whatever, or shall use or employ any instrument or other means whatever, with intent to destroy such child and shall thereby destroy such child before its birth, unless the same shall have been done with a view to preserve the life of the mother, shall be punished by imprisonment in the penitentiary, not less than one nor more than five years.
In short: It outlawed abortions. And the law remained untouched for 90 years — until 1973, the year of the U.S. Supreme Court case called Roe v. Wade.
“The Supreme Court today ruled that abortion is a private matter to be completely decided by mother and doctor in the first three months of pregnancy,” an ABC newscaster said on Jan. 22, 1973. “The 7-2 ruling to that effect will probably result in a drastic overhaul in state laws on abortion.”
‘The Time Is Right’
Tennessee did change its laws so abortion was now legal and passed pages of regulations on it over the next decade and a half. These provisions included a two-day waiting period between signing a waiver at a physician’s and getting the abortion. Another stated that if the abortion was performed in the second trimester, it had to be done in a hospital.
Click to read through abortion regulations in 1989. Many were considered unenforceable at the time.
But in 1982, the U.S. Supreme Court declared these provisions unconstitutional, and therefore unenforceable — until another Supreme Court case in 1992, when it lowered the standard for evaluation of abortion regulations.
To Louise Melling, who’s now deputy legal director of the American Civil Liberties Union, the ’92 court decision was problematic.
“Tennessee could argue that it then go forward and enforce those provisions for the first time,” she says.
At the same time, the Supreme Court of Tennessee was inching toward more progressive rulings on privacy and procreation.
“The ACLU approached Planned Parenthood and talked to their board about: The time is right to challenge these provisions within the Tennessee abortion statute,” says Hedy Weinberg, executive director of the ACLU of Tennessee.
Melling was one of the lawyers in the resulting case, called Planned Parenthood v. Sundquist.
“The case was an incredibly important case,” she says. “So for me, there was pressure to do the best job possible so as to do right by the people in the state.”
It took eight years for the case to get to the Tennessee Supreme Court. William Barker was a justice on the court at the time. There was a certain pressure on him, too.
“During the oral argument, I was told that there were people outside demonstrating on both sides,” he says. “I knew it was a hotly contested issue, I knew it was a big case, but I didn’t know that. So it’s not fun to work on a case that’s difficult both ethically and morally and legally. But yet someone has to do it.”
‘Prepare The Amendment’
In the end, in September 2000, the state Supreme Court struck down several abortion regulations. They decided the Tennessee constitution contains a fundamental right to privacy, which includes a woman’s right to terminate her pregnancy. Because of that, they said, Tennessee could only pass very narrow restrictions on abortions.
Restrictions now had to pass a standard in Tennessee that was more stringent than the rest of the country. Barker disagreed, and he contested the other justices’ decision in a dissent opinion.
“My view was that the majority had invented a law that wasn’t there,” he says. “It may have been the longest dissent I ever wrote.”
What he wrote 14 years ago looks familiar in this year’s election:
Plainly stated, the effect of the Court’s holding today is to remove from the people all power, except by constitutional amendment, to enact reasonable regulations of abortion.
In other words, Barker laid out the conservative reasoning for a constitutional amendment.
David Fowler, president of the Family Action Council of Tennessee, was a Republican state senator at the time. He read the opinion after it was released “and decided that day to do what Mickey Barker had suggested,” he says. “I resolved then to prepare the amendment and filed it the next year.”
His proposed amendment didn’t go anywhere that year — nor did similar amendments that were introduced the next eight years. It wasn’t until 2011 that an abortion amendment proposal passed in the legislature. Then it couldn’t be voted on until the next election for governor — which brings us to this fall.
If the amendment passes, it would effectively reverse the Tennessee Supreme Court ruling in 2000. The legislature could pass broader regulations on abortions, and the issue would be expected to come up during the legislative session next year.
What Is Amendment 1?
Here’s the full text of the proposed amendment:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
On Air - 90.3 WPLN-FM