U.S. Supreme Court (Photo: Ariana Figueroa)
As the leaked draft of a Supreme Court decision overturning Roe v. Wade spilled swiftly across the internet Monday night, the reality that abortion in Tennessee could be almost entirely illegal before summer’s end was brought into sharp focus by morning.
“I think we knew this day would come,” Ashley Coffield, CEO of Planned Parenthood of Tennessee and Northern Mississippi, said Tuesday as she touched on plans to hire “navigators” whom — she expects — will soon coordinate out-of-state trips for Tennessee women seeking an abortion. “It’s just still very shocking.”
Stacy Dunn, president of Tennessee Right to Life, declined to comment Tuesday, saying she would “prayerfully await” the official opinion her organization has long sought. The Nashville-based nonprofit has served as a singular force in Tennessee politics for decades, responsible for shepherding through the 2019 Human Life Protection Act that will trigger a ban on nearly all abortions in Tennessee if Roe is overturned.
“Tennessee Right to Life will not issue a statement concerning the leak of the Supreme Court decision on the Dobbs abortion case. We will prayerfully wait until the official opinion is handed down.”-Stacy Dunn, President of Tennessee Right to Life
— tnrighttolife (@tnrighttolife) May 3, 2022
The legislation, enacted by a supermajority Republican legislature and signed into law by Gov. Bill Lee, was a key victory for abortion opponents in Tennessee, one of 13 states that have enacted so-called trigger laws — most during the Trump administration.
But its genesis dates back more than 20 years, to a time when the Tennessee Constitution guaranteed greater protections to women seeking an abortion than even Roe v. Wade had established.
A short history of abortion in Tennessee
The Tennessee Supreme Court in 2000 issued a decision that stunned.
It struck down a series of abortion restrictions enacted by state lawmakers, including a 72-hour waiting period before a woman could obtain an abortion and a requirement that second trimester abortions be performed in a hospital.
“A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution,” the judges wrote. Their decision concluded that the Tennessee Constitution guaranteed a greater right to privacy, including a woman’s decision to obtain an abortion, than the U.S. Constitution.
The outcome meant, for years, Tennessee lawmakers were unable to pass abortion restrictions even as they were becoming more common in neighboring states across the South — measures such as waiting periods, mandated counseling and ultrasounds. Tennessee’s abortion access drew women from across state lines. By 2012, more than one in four abortions in Tennessee was being obtained by a woman traveling to Tennessee from out of state.
Tennessee Right to Life emerged as a leading advocate for the narrow path forward to restrict abortion in Tennessee — by amending the state constitution. The state’s constitutional amendment process takes years: a proposed amendment must first pass by a majority in the House and Senate, in two-year General Assembly, and then pass by at least two-thirds of the vote in the next. The amendment then goes before voters in the next gubernatorial election.
By 2014, abortion opponents had succeeded. “Amendment 1” was approved by 53 percent of voters in one of the most contentious and expensive ballot fights in state history. The amendment stripped the right to an abortion from the Tennessee Constitution, adding language that read:
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 or 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.
Amendment 1’s passage opened the door to a flood of legislation that has imposed increasing restrictions on women seeking abortion and clinics providing them, including a 48-hour abortion waiting period, required ultrasounds, a rule that fetal tissue must be buried or created by a licensed funeral home, a six-week “heartbeat” abortion ban that is currently being reviewed by the 6th Circuit Court of Appeals — and the trigger bill.
If Roe is struck down
Tennessee is one of 13 states with so-called trigger laws, legislation whose effective date is contingent on the eventual overturning of the landmark 1973 abortion case.
Tennessee’s law makes abortion a crime: a Class C felony for physicians – or anyone else – who performs an abortion, punishable by up to 15 years in prison and a fine of up to $10,000.
It has one exception: abortions necessary to prevent death or “serious risk of substantial and irreversible impairment of a major bodily function.” Physicians in those circumstances must be prepared to provide proof as a defense to criminal prosecution.
Women seeking an abortion face no criminal penalties. And a woman’s mental health is explicitly excluded as a serious risk of substantial and irreversible impairment.
A physician performing an abortion under these circumstances would also have to be ready to provide proof that he or she made a best-faith effort to deliver the fetus alive, unless the doctor could show that doing so would cause death or grave harm to a woman.
These provisions would take effect on the 30th day after the Supreme Court either overturns or amends its Roe decision, according to the law.
The leaked draft, obtained by Politico, shows a majority of justices signing on to an opinion that states: “We hold that Roe and Casey must be overruled.” The document’s authenticity was confirmed Tuesday by a court spokesperson, who noted draft opinions often change before they are published.
Coffield, the Planned Parenthood CEO, said Tuesday that another scenario could lead to a near total abortion ban even sooner.
The 6th Circuit is weighing a challenge brought by abortion providers in Tennessee to a 2020 state law outlawing most abortions after six weeks. The law is currently on hold pending their decision, but Coffield believes that should the Supreme Court overturn Roe, “we expect they (6th Circuit) will lift the temporary injunction on the six-week ban pretty quickly after the decision comes down.”
In the meantime, Coffield and other abortion providers — there are six in Tennessee — are preparing to provide Tennessee women seeking abortions the resources and guidance to obtain them in other states. Planned Parenthood clinics in Memphis, Nashville and in Knoxville — where Planned Parenthood is rebuilding a clinic torched by an arsonist on New Years Eve — will continue to provide reproductive health services along with post-abortion care, she said.
That scenario has its challenges. Of the nine states that border Tennessee, only West Virginia has no existing ban that would be triggered if Roe is struck down, although it has tough restrictions in place. The nearest location for women in Middle and West Tennessee with available clinics is Illinois. For women in east Tennessee, North Carolina, Virginia and possible Florida are the likely destinations, she said.
The looming abortion shifts come as Tennessee continues a decade-plus decline in demand for abortions.
In 2019, the most recent data available by the Tennessee Department of Health, more than 8,600 abortions were performed in Tennessee. A decade earlier, in 2009, more than 13,699 abortions were sought statewide.
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