One of the standard ways in which the Tennessee legislature can dispose of troublesome legislation — the kind that has an active constituency that needs propitiation but is booby-trapped with unwanted controversy — is to send it to “summer study.” In most cases, that amounts to putting the inconvenient measure into a kind of limbo, from which it normally doesn’t return. Such is not the case, however, with House Bill 77/Senate Bill 1236, the so-called “fetal heartbeat” bill that was introduced in the 2019 legislative session, passed the House, and was seemingly on the verge of passage in the Senate as well when, at the apparent instigation of Senate Speaker Randy McNally, it was deferred from final consideration by the Senate Judiciary Committee and routed to summer study.
McNally, it should be noted, is not, in the lexicon of our times, a “pro-choice” legislator, opposed to curbs on legal abortion out of some fealty to the U.S. Supreme Court’s 1973 Roe v. Wade decision or as an advocate that women should have control of their bodies. McNally’s objections to the fetal heartbeat bill hinged on his doubts that the bill could withstand constitutional tests in court while meanwhile running up ruinous legal bills for the state of Tennessee.
The bill, versions of which were passed last spring in other states, would prohibit abortion once evidence of a fetal heartbeat could be detected medically.
McNally, a professed foe of abortion, lent his authority instead to a “trigger” bill — one that would automatically ban abortions in Tennessee if and when the U.S. Supreme Court should reverse Roe v. Wade, which, at present, guarantees the right of legal abortion nationwide. That bill passed both houses and was signed into law by Governor Bill Lee.
Meanwhile, this week, the fetal heartbeat bill came up for its reckoning before the Senate Judiciary summer study session in Nashville and, as a capacity audience looked on, turned out to be not only live and kicking but metamorphosed into a more direct threat to constitutional precedent than had the original version that was shelved last spring.
An amended version of the bill, sponsored by Senator Mark Pody (R-Lebanon), would go the “fetal heartbeat” route one better, proclaiming abortion illegal as soon as a woman knows she is pregnant. In the recast bill, the fact of pregnancy itself, not any determination of fetal functioning, would prohibit abortion.
Based apparently on some obscure interpretation of “common law” rights purportedly granted by the 9th Amendment to the U.S. Constitution, the backers of the amended bill are basically calling for an out-and-out ban on abortion.
Senator Katrina Robinson (D-Memphis), a Judiciary Committee member, called the amended bill “idiotic” and “completely unconstitutional,” but the Republican committee majority is likely to have its way and to resurrect the already flawed bill in its newly perverse and aggressive form for reconsideration in the legislative session of 2020.
McNally has said he is opposed to the new version, and that’s a hopeful sign. But if there’s anything experience has taught us about the Tennessee legislature, it is that good sense and proper caution are not guaranteed among its members.
Quite simply, this new version of an already bad bill deserves an early-term abortion.