Strict Tennessee Abortion Bill Spurs Federal Lawsuit

The controversial bill bans abortion after a fetal heartbeat is detected and requires an ultrasound before the procedure.  

The Tennessee Capitol Building in Nashville. (Photo via Kaldari/Wikipedia Commons)

NASHVILLE, Tenn. (CN) — A group of Tennessee abortion providers sued the state in federal court Friday, asking a judge to immediately prevent it from enacting strict anti-abortion legislation passed hours before.

“Without this relief, the bans will immediately and irreparably harm Plaintiffs and their patients by eviscerating abortion in Tennessee with devastating effects,” the lawsuit states.  

Governor Bill Lee, a Republican, has not yet signed the legislation, the 34-page complaint said, but he submitted the bill to the legislature. He called it the “strongest pro-life law in our state’s history” and it will go into effect once he signs it. 

In the early morning hours Friday, the Tennessee General Assembly passed strict abortion legislation that has divided anti-abortion activists who disagree over how legislation should be written and strategies that would place the matter before the U.S. Supreme Court.

The bill is designed to be separable. Should the legislation’s provisions prohibiting abortion after a fetal heartbeat is detected be struck down, other sections – such as requiring abortion providers to perform an ultrasound before the procedure – are designed to still stand.

The measure passed during a late-night session that lawmakers had said earlier was dedicated to passing a budget and coronavirus-related measures.

The complaint is brought by attorneys with the American Civil Liberties Union, the Center for Reproductive Rights and the Planned Parenthood Federation of America.

According to the lawsuit, the bill contains “cascading bans” of abortion. In one portion of the legislation, abortion is prohibited if there is a fetal heartbeat. The next section of the legislation bans the practice beyond six weeks of the last menstrual period and then the following section bans the practice past eight weeks, 10 weeks and so on until the legislation bans it beyond 24 weeks.

The legislation’s bans make no exceptions for rape, incest or fetal conditions, the abortion rights groups say.  

The complaint alleges the legislation is unconstitutional because it targets previability abortions.

“Existing Tennessee law already proscribes abortion after viability. … Therefore, the only application of each of the cascading bans and the reason bans (collectively, the ‘bans’) is to unconstitutionally ban pre-viability abortions,” it states.

Alexis McGill Johnson, acting president of Planned Parenthood Federation of America, said Tennessee lawmakers knew the bill was unconstitutional but still passed it at a time when the public is not allowed into the statehouse.

“It is a disgrace that in the face of a true public health crisis, Tennessee politicians wasted their time with this last-minute move to attack abortion access before closing up shop this session,” Johnson said.

Calling the U.S. Supreme Court’s theories surrounding the 14th Amendment “flawed,” the 39-page bill also prohibits abortion if there is a viable pregnancy, defined as an increase of the hormone HCG, which is measured in many pregnancy tests. Performing a prohibited abortion would be a Class C felony or Class A misdemeanor.

Lawmakers in the House voted 70-20 to pass the bill and the Senate passed the legislation 23-5.

But the measure received mixed reactions from anti-abortion activists. The Family Action Council of Tennessee, which advocates for socially conservative laws in the state, took to Twitter to say the bill relied on dubious legal theories, despite the advice lawmakers received.

For instance, the idea a piece of legislation can be segregable was rejected by the Supreme Court four years ago, FACT wrote, and Kentucky’s 15-week ban on dilation and evacuation abortion was struck down just weeks ago.

“It is important for the #prolife community to understand that we lost,” the group wrote. “Amid all of the applause and legislators that will pat themselves on the back leading up to an election, we lost. We worked vigorously to defend life here in TN. And we lost. Politics won.”

Furthermore, FACT said few anti-abortion organizations supported the law. It did not immediately respond to a request for comment Friday.  

Mathew Staver, founder of the Florida-based Liberty Counsel, said Tennessee’s legislation could become a model for other states because of the severability of the law, which restricts abortion at several gestational periods.

“If it gets struck down, they don’t have to come back in session again, pass another one and test a different time of gestation,” Staver said by phone. “It can simply be peeled off and continue without having to re-pass it. So it’s really multiple options through the gestational period in one bill.”

Liberty Counsel, which is representing a couple counties in Indiana over their nativity displays, told Tennessee lawmakers it would defend the abortion bill during a session studying the legislation in August.

Staver said the offer still stands, even though the state has not reached out since then.

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