Tennessee Right to Life Concerns Regarding Heartbeat Abortion Ban

NASHVILLE, APRIL 15, 2019 - Tennessee Right to Life respectfully underscores the concerns of our organization with regard to S. B. 1236, the heartbeat abortion ban legislation.

• The nation's leading pro-life constitutional attorneys unanimously view heartbeat bills as "futile" and "foolish." This includes Paul Linton who drafted pro-life Amendment 1, James Bopp (General Counsel to National Right to Life Committee) who defended Tennessee's Choose Life plate and Clarke Forsythe (General Counsel to Americans United for Life.)

• Heartbeat bills have been struck down as unconstitutional in each state where they were passed and signed into law (North Dakota, Arkansas, Iowa.)

• Kentucky's recently passed heartbeat bill was immediately enjoined.

• The TN-ACLU and Planned Parenthood have announced their intention to file suit if the heartbeat ban is passed and signed.

• Significant tax dollars were awarded in legal fees in the other states to pro-abortion plaintiffs including hundreds of thousands of dollars to Planned Parenthood.

• If the goal is putting a heartbeat ban before the 6th circuit, Kentucky and Ohio now have laws which will be appealed there.  It's unclear why Tennessee tax dollars should fund an additional lawsuit.

• No justice on the U.S. Supreme Court agreed to take up lower court cases leaving intact the 8th circuit court rulings which found heartbeat bans unconstitutional---not even Justice Clarence Thomas.

• Such litigation can result in unintended consequences as courts take the opportunity to review other existing pro-life statutes and possible cumulative threats to the "undue burden" standard established in the 1992 Casey ruling.
• Contrary to claims, not all meaningful pro-life laws are challenged upon enactment.  Recent examples in Tennessee include the Ban on Telemed Abortions (2011), Abortion Prohibited in Health Exchanges (2010), Freedom from Coercion law (2010), SJR 127 (2011), Unborn Victims of Violence Act (2011), redirection of Title X funding away from Planned Parenthood (2011), Ban on the Sale of Fetal Tissue (2016), and the Infant Protection Act which prohibits abortion after viability (2017).

• In contrast, The Human Life Protection Act (HLPA) SB 1257 is drafted by pro-life constitutional attorney Paul Linton, who also assisted in drafting pro-life Amendment 1. HLPA is an alternate approach toward protecting life which is sponsored by Sen. Dolores Gresham (R-Somerville) and supported by Tennessee Right to Life. 

• HB 1029 provides broader protections for the unborn and abortion-vulnerable women by restoring Tennessee's pre-Roe statutes upon the overturn of Roe, in full or in part, by the U.S. Supreme Court. As a result, HB 1029 does not face the same legal challenges as the heartbeat ban with the threat of building additional case law in support of Roe's precedent.

For these reasons, Tennessee Right to Life cannot support legislation which holds the potential to gravely harm this state's existing pro-life public policies and grassroots gains.

"If one of these measures ever got to the Supreme Court, which is highly unlikely because they are so obviously unconstitutional under Roe v. Wade, it would allow the court to refashion abortion law under, maybe, gender discrimination.  Which would mean that all regulations on abortion would be unconstitutional."

-James Bopp, General Counsel, National Right to Life Committee

"No state or federal court has upheld a "heartbeat" bill and barely three years ago, the Supreme Court refused to review two cases in which the Eighth Circuit has struck down "heartbeat" bills in Arkansas and North Dakota.  Not a single justice on the Court publicly dissented from the denial of review...More recently, the Court has refused to review two cases (from Kansas and Texas) cutting off Title XIX funding to Planned Parenthood.  How likely is it that a Court that won't take a funding case would take a case directly challenging Roe? It's absurd." 

-Paul Linton, Helped to Draft SJR 127, Amendment 1

"The chance of enforcement for any of these laws is not very good, the obstacles are substantial." 

-Clarke Forsythe, Senior Counsel, Americans United for Life

which writes model legislation for state lawmakers,

calling the heartbeat bills well-intended but misguided. 

Washington Post, April 12, 2019