Stockard on the Stump: Lawmakers line up to add exceptions to abortion law

January 6, 2023 6:02 am
Tennessee State Capitol (Photo: John Partipilo)

Tennessee State Capitol (Photo: John Partipilo)

Six months after one of the nation’s most restrictive abortion laws took effect in Tennessee, state lawmakers are ready to loosen it. 

Sen. Ferrell Haile confirmed to the Tennessee Lookout this week he is preparing legislation to make rape and incest exceptions to the “trigger” law, which was enacted in 2019 before the U.S. Supreme Court overturned Roe v. Wade last summer.

Senate Republican Caucus Chairman Ken Yager also is set to sponsor a bill to change the “affirmative defense” mechanism that criminalizes physicians who perform abortions to save the life of a mother going through a deadly pregnancy. 

“I’m certainly going to support that piece of (Yager) legislation going forward, and I’m still looking at some other options,” Haile, a Gallatin Republican, said this week.

Haile and Yager are both leaders of the Senate Republican Caucus and are likely to be given leeway by Lt. Gov. Randy McNally to carry their bills through the legislative process without him trying to quash them, though McNally is satisfied with the law as written.

Yager recently said his legislation would “strengthen protections” for doctors who perform abortions to save the life of the mother or stop her from suffering the loss of bodily functions by changing the “affirmative defense” exception “to a clear exception when the life of the mother is in clear jeopardy.”

House Speaker Cameron Sexton says he would back measures to create exceptions to abortion restrictions; GOP Sen. Ken Yager, Kingston, and Sen. Ferrell Haile of Gallatin confirm they are set to sponsor legislation. No such legislation has been proposed in the House.

“Although well intended, the affirmative defense provision is not only overly burdensome for physicians but it can prevent them from performing life-saving abortions for fear of litigation, which puts at risk the lives of pregnant women who require medically necessary abortions,” Yager said in a statement.

The Kingston Republican noted he has heard from constituents and doctors who support such a bill. He added that “abortion would remain illegal” under his legislation in Tennessee.

Yet another heavy hitter, House Speaker Cameron Sexton, is saying he would back exceptions to the abortion restrictions.

“Speaker Sexton believes clarification is needed in the current law, as well as a change to affirmative defense — meaning someone has to prove their innocence which runs contrary to our judicial system. A doctor should not be singled out under affirmative defense instead of the usual standard of being innocent until proven guilty,” spokesman Doug Kufner said this week. “As with any legislation, should a proposal with agreeable language make it through the committee system to the House floor — including exceptions for rape, incest and life of the mother — the speaker would be supportive.”

Sexton is expected to appoint a committee when the General Assembly convenes next week, along with standing committees, that would shepherd such legislation through the House.

Tennessee Right to Life PAC, which pushed the “trigger bill” to passage, withdrew an endorsement of Republican Sen. Richard Briggs for saying he supports changes to the law. It will be interesting to see if they harangue Speaker Sexton, Yager and Haile, toFormer legislator Roger Kane, leader of the Tennessee Right to Life PAC said this week he doesn’t expect to pull any other endorsements, even if legislators sponsor bills to tweak the law. Briggs was targeted, Kane said, because he kept seeking out the media to make his point.

Right to Life counsel Will Brewer said this week he is set to meet with Yager and Haile and is waiting to see the legislation but still opposes “any changes in the abstract.”

Democrats said last summer they would be proposing a litany of bills designed to turn back the state’s abortion ban, which is among the most stringent in the nation.

Rep. Yusuf Hakeem, a Chattanooga Democrat, is sponsoring HB10, that specifies a criminal abortion doesn’t include a procedure necessitated by a medical emergency affecting the physical or mental health of the mother or one performed on a patient whose pregnancy was the result of rape or incest. It requires the doctor who performs the abortion to verify the patient reported the offense to law enforcement before the procedure.

Hakeem filed his bill weeks ago, but it would be fairly amazing to see this Republican-controlled Legislature allow a Democrat to turn back a bill they worked so hard to pass, only to realize they angered every physician in Tennessee, in addition to many women who, like it or not, go to the ballot box.

Inmates run the asylum

Republican leader Kevin McCarthy flew to Nashville last summer to raise money for Andy Ogles in his run for the newly-gerrymandered 5th Congressional District seat.

Ogles told Politico  he would support McCarthy for the speaker’s post. It sounded great when Ogles needed the leader’s help to pack in a few more dollars to bolster his sagging campaign as Democratic Sen. Heidi Campbell outraised him by a wide margin.

U.S. Rep.-elect Andy Ogles gives his victory speech on Election Night, November 8. 2022. (Photo: John Partipilo)
U.S. Rep.-elect Andy Ogles gives his victory speech on Election Night, November 8. 2022. (Photo: John Partipilo)

“He’s earned the right to lead the caucus,” Ogles told Politico, referring to McCarthy.

A recently unearthed photo — can it be dug up if it’s on Twitter? – also shows Ogles handing a giant speaker’s gavel to McCarthy, a pretty good sign that he would back him to lead the House.

The stars aligned — or at least the Legislature’s pencils drew the lines — so Ogles could wind up ascending to Washington, D.C.

If Tennessee Republicans hadn’t made a district with a 20-point advantage for the GOP candidate, Campbell could have won. Then again, if the gap hadn’t been so wide, former Congressman Jim Cooper would have run for re-election.

But here we are with Ogles holding the seat instead of former Tennessee House Speaker Beth Harwell or retired Brig. Gen. Kurt Winstead, who canceled each other out in the battle for traditional Republicans.

By the time he won the primary, a Federal Election Commission complaint had been filed against Ogles, and he had sent out a release saying he raised more money than he really wound up raising.

That left Ogles in the lead, and after the primary, he proceeded to do very little. The strategy was to stay quiet and avoid stupidity.

Those days are done, though, and it was no surprise that Ogles was among 18 Republican whiners — not sworn in yet — who refused to vote for McCarthy in this week’s D.C. debacle. He finally voted for McCarthy on the 12th go-around, which still didn’t provide enough votes for the leader to take the real gavel.

Bloomberg reported that Ogles wants seats on the powerful Financial Services and Judiciary committees in exchange for his vote.

5th District U.S. Rep.-elect Andy Ogles — he cannot be sworn in until a House Speaker is elected — told Politico last summer that U.S. Rep. Kevin McCarthy has “earned the right to lead the caucus.” Ogles, who made the remark after McCarthy raised money for him in Nashville, has voted against McCarthy 11 times.

McCarthy needed 218 votes but couldn’t garner enough in the first seven go-arounds as ultra-right-wingers held him hostage. He couldn’t even collect more support than Democratic Rep. Hakeem Jeffries as Ogles and a group of other obstructionists blocked McCarthy to ensure they could be celebrated by government haters everywhere. If you don’t like the government, why bother? Go join the Oath Keepers, if you haven’t already.

Anyhow, Ogles flip-flopped, which is always a good move in your first official act in Congress.

Shortly before the vote, Ogles signed an oddly-worded letter blaming McCarthy for everything except the price of tea in China — and maybe that if you look closely enough. 

Apparently, this group felt they should be elevated to some sort of ethereal status in the House, the same way members who’ve been there only one term think they should get the top committee posts instead of earning them.

“The times call for radical departure from the status quo — not a continuation of past, and ongoing, Republican failures,” the letter states. “For someone with 14-year presence in senior House Republican leadership, Mr. McCarthy bears squarely the burden to correct the dysfunction he now explicitly admits across that long tenure.”

Maybe the letter should have said the “dysfunction” we are preparing to cause until we get our way. 

Clearly, gridlock is more important than telling the truth or keeping promises. But there is nothing more congressional than lying, so get used to it. We’ve only just begun.

What the?

An investigation by the Davidson County Election Commission found that hundreds of Nashville voters were put in the wrong district last year through an “unfortunate combination of human error and failure to follow all steps to ensure changes were made accurately.” 

The “root cause of the errors” was updates made by election commission staff after Metro IT GIS geocoded voter rolls, all of which were made without independent verification. Alterations should have been run through the Tennessee Comptroller’s Office to make sure people were put in the correct district, according to the report.

Initially, 3,637 voters were believed to be misassigned on Nov. 1, in the midst of early voting, and finally Metro confirmed 3,060 were misassigned. More than 400 were given the opportunity to cast a provisional ballot on Election Day, but only 117 showed up. Their votes were to be counted only in the case of a contested election.

“Fortunately, based on margin of victory, no election was decided because of the misassignment of voters,” the report states.

The final analysis: Republican lawmakers did such a good job of gerrymandering Congressional Districts 5, 6 and 7, canceling out liberal Davidson County voters with conservative suburban and rural voters across Tennessee, that votes in Metro Nashville didn’t matter. Democrats were outnumbered 6-to-4 in each district, ensuring they were disenfranchised regardless of where they voted.

That is true efficiency in government. We didn’t need an election or a Davidson County review to determine a point that was moot in January 2022.

Judge in the offing

The Governor’s Council for Judicial Appointments this week selected three candidates for an opening on the Tennessee Supreme Court: Tennessee Court of Appeals Judge Kristi M. Davis of Knoxville, Criminal Appeals Judge Tom Greenholtz of Ooltewah, and Dwight Tarwater of Knoxville, former general counsel to Gov. Bill Haslam.

The finalists are being sent to Gov. Bill Lee for selection and confirmation by the Legislature to replace Justice Sharon Lee, who is retiring.  

(No word yet on whether Greenholtz’s decision to include Sens. Todd Gardenhire and Bo Watson on his resume will help or hinder.)

You can go home again

Davidson County Chancellor Patricia Head Moskal ruled this week that Nashville Scene reporter and Nashville Post interim editor Stephen Elliott is not an alien, although as an Alabama fan, his status is highly questionable.

We’re checking to see whether U.S. Sen. Marsha Blackburn has filed any challenges against his citizenship.

Anyway, the chancellor ruled in favor of Elliott and the publications in their open records lawsuit against the state over its refusal to release a COVID-19 report by McKinsey & Co., which landed a $3 million no-bid contract to do nothing but fill in a bunch of blanks. Moskal found that the report falls under the Tennessee Public Records Act and shouldn’t be kept secret because of “deliberative process privilege,” a term used to hide stupid stuff.

Gov. Lee declined to say Thursday whether he would release the report, contending the matter remains in litigation. The state can answer the judge’s decision in early February.

The state’s attorney had also argued that Elliott didn’t have standing to file the lawsuit because he wasn’t a “citizen” of Nashville, even though he’s lived in the city for years. They tell me he used to sit about 6 feet away from me at the Cordell Hull press corps office. Now that he’s the Post’s interim editor, a title that probably should become permanent, I see him only at Christmas parties. Too bad.

The question should not be whether this report is protected but whether the governor’s office gave away $3 million to figure out how every department in state government responded to the pandemic. 

Apparently, they hate money. It’s what we say every time someone misses a putt with cash on the line.

Regardless, it’s good to have Elliott officially back in Nashville.

Just remember, man, “You don’t have to live like a refugee.”

(To readers, please accept apologies. The last bit of the Stump is usually short, but the Stump author just started drinking coffee again.)

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial and Best Single Feature from the Tennessee Press Association.