(CN) – Tennessee’s neighbors did it and next year, it could be the Volunteer State’s turn.
After states to its north, south and west passed tight restrictions and even outright bans on abortion, Tennessee is considering a similar restriction that would ban abortion the moment a woman receives a positive pregnancy test.
On Tuesday, abortion-rights activists wearing black and anti-abortion activists donning red sat in Nashville and listened to nearly 20 witnesses – from doctors and lawyers to a rabbi who obtained an abortion and a female preacher – support, critique and oppose the proposed law.
It was the second day the state Senate Judiciary Committee, comprised of seven Republicans and two Democrats, held its summer study session at the Tennessee State Capitol examining the constitutionality of the bill.
The bill has split anti-abortion activists in the red state between those who see the legislation as creating another unique legal opportunity to challenge Roe v. Wade and those who believe it is not yet time to ask the U.S. Supreme Court to reconsider the 1973 landmark decision that legalized abortion up until 22 to 24 weeks of pregnancy.
The legislation, originally introduced in January as a ban on abortion after a fetal heartbeat is detected, was amended to ban the procedure for a viable pregnancy. A viable pregnancy, as defined by the amended bill, occurs when the HCG hormone produced by the placenta during pregnancy is detected. Many pregnancy tests work by determining the HCG levels in a woman’s urine.
The Legislature tabled the bill in early April, opting to study it further in this month’s Senate Judiciary Study Session.
Then came legislation and legal challenges in Georgia, Alabama, Kentucky and other places. Nine states in all passed abortion restrictions this year, which quickly spurred lawsuits.
Tennessee’s bill has support from conservative groups like Liberty Counsel, which offered its legal services to defend the bill should it become law.
Richard Mast, an attorney for the group, told the committee on Tuesday the nation’s high court may be open to revisiting Roe as opposed to relying so heavily on precedent-setting cases, even if the precedents are decades old.
“At least three cases decided this term authored by Thomas, Alito and Chief Justice Roberts signal a return to the idea that the Constitution itself, not what other judges have said about it, is controlling,” he said.
Mast testified Tennessee’s bill could be unique as a potential challenge to Roe through an argument that the Ninth Amendment – which says some rights not enumerated by the Constitution belong to the people – speaks to a common-law right to life.
But Paul Linton, special counsel for Tennessee Right to Life who helped author the state’s trigger law that would ban abortion if Roe is reversed, said the legislation has several flaws, including changing the definition of “viability” as understood by the Supreme Court.
Recently, Linton said, the Supreme Court has been denying cases challenging the right to abortion and none of the conservative-leaning justices have issued dissents calling for review.
“In my professional opinion, based upon more than 30 years in the pro-life movement, this amended bill if enacted will never go into effect, will never be reviewed by the Supreme Court,” he said. “It will not save a single life.”
Linton believes the Supreme Court is waiting for the issue to brew further, until there is a split among the federal appeals courts. And state-level bans on abortion, the attorney said, will not create disagreement in the circuit courts that are duty-bound to uphold Roe.
The better strategy, Linton told the committee, would be to pass a bill requiring minors to inform one parent before seeking an abortion, which could allow the state to make a Ninth Amendment argument regarding common-law parental rights.
Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, vowed her organization will sue the state if the bill is signed into law. She told the committee that cutting off access to abortion would squeeze Tennesseans already facing economic hardship and health care struggles.
“Passing this bill will come at a significant financial cost to your constituents,” Weinberg said.
She pointed to three recent abortion cases where the ACLU received hundreds of thousands of dollars in attorney fees after the Supreme Court declined to review cases in North Dakota, Arizona and Arkansas.
The Tennessee bill, she said, would also likely end in failure.
“There are absolutely … no cases where rights recognized under the Ninth Amendment overcome rights recognized in the Constitution,” Weinberg said.
The Legislature is set to consider the bill when it meets again in January.