What is the Tennessee Fetal Heartbeat Abortion Ban?
This month, more than 300 people packed the state legislature to hear Tennessee’s state lawmakers discuss a bill that essentially bans abortion as soon as a woman knows that she is pregnant. In the last year, states such as Georgia have instituted similar bills. Other states, such as Ohio and Mississippi, have quickly had their measures blocked or challenged in court. In May, Alabama passed what some consider the strictest abortion law in the nation, but it is already facing a challenge in federal court.
Introduced by Tennessee state Sen. Mark Pody, the proposed legislation is an amendment to Senate Bill 1236, which aims to ban abortions after six weeks’ gestation, even though that is before many women know they are pregnant. That bill did not gain the state legislature’s approval this term. In January 2020, the legislature will be back to vote on Pody’s new amendment, which replaces the six-week ban for a ban on all abortions by redefining a ‘viable pregnancy’.
The U.S. Supreme Court has defined a pregnancy as viable if the fetus can exist outside a mother’s womb. This bill disagrees. It redefines a viable pregnancy as one that can be detected by a pregnancy test, which can happen just weeks after a woman gets pregnant.
Pody wants Tennessee to establish a state law that defines viability as starting at the moment of conception – or when a sperm meets with an egg (he does not seem to know the difference).
“Our bill is trying to do things in a different way,” he told the Tennessean. “A baby is a live human being and should be entitled to any of the constitutional rights as any other person.”
The most significant red flag with this suggestion is that under this logic emergency contraception like certain IUDs and Plan B would also be banned since they can prevent a fertilized egg from implanting in the uterus.
The amendment wrongly, almost egregiously states that a fetus is viable at conception. With this new ‘fact,’ the bill argues that since one of the key holdings of Roe v. Wade is confirmation of “the State’s power to restrict abortions after fetal viability” the state is free to ban abortions starting at conception.
As Katherine McHugh, an OB/GYN in Indianapolis, said to VICE, “The guidelines that this Tennessee language is based on are outdated and have been retracted,” McHugh said. “[The proposal also] uses medical language that is misinterpreted into layman’s language and is an example of how politicians do not understand the medical language enough to make a policy based on it.”
What is up with all these restrictive abortion bills?
During Supreme Court nominee Brett Kavanaugh’s confirmation hearings, many around the nation began either anticipating or bracing themselves for a massive rollback of women’s reproductive rights.
Seven of the lawmakers on the Committee have made it clear that the debate was not about restricting abortion access in Tennessee: it was a bow wow among anti-abortion groups, scrambling to find the best strategy to abolish abortion and overturn Roe v. Wade.
This has motivated people like Sen. Kerry Roberts (R), who told CBS News, “We want a vehicle to lead the Supreme Court to consider, I hope, overturning or at least chipping away at Roe v. Wade.” However, many anti-abortion groups argue that the blatantly outrageous unconstitutional nature of the proposed measures do nothing but set their collective movement back.
Jim Bopp, an attorney for the National Right to Life Committee, told the Nashville Tennessean that defining viability so early in a pregnancy was “irrational.”
“It makes us look foolish,” he said. “And I do not want to look foolish.”
In times like these I like to turn to my spirit animal, the one and only Justice Ruth Bader Ginsburg, an abortion-rights supporter who led the ACLU’s Women’s Rights Project in the early 1970’s. Ginsburg has long argued that the decision made by Justice Harry Blackmun, who wrote the opinion for Roe V. Wade, was both a blessing and a curse.
The landmark Roe v. Wade decision in 1973 relied on the due process clause of the Fourteenth Amendment to find a “right to privacy” that protects a pregnant woman’s liberty to choose whether or not to have an abortion. By grounding abortion rights on an expansive but implied right to personal privacy, Ginsburg observed years after, “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” It also provided little motivation for pro-choice activists to want to change the mind of their opponents.
Taking an alternative approach, three anti-abortion speakers argued there could be a new constitutional basis for overturning Roe that lay within the Ninth Amendment of the U.S. Constitution. This scenario is exactly what RBG was scared of. If the court ends up reconsidering the right to privacy, we’d be left in a risky dilemma where conservative state legislatures’ overreach is inevitable.
How far will anti-abortion opponents go in stripping not just the right to choose, but the very right to privacy?
How would the bill affect people?
During the second day of the session, Hedy Weinberg, executive director of the ACLU of Tennessee, told the panel that the measure put politics above women’s health, and then accused lawmakers of knowingly going forward with an unconstitutional proposal to use as a “political football” to gain votes during primary races.
Heather Shumaker, an attorney for the National Women’s Law Center, testified that the measure would force women to travel out of state for abortions, imposing an especially difficult burden on poor women, women who already have children, and minority women.
According to recent findings in The Turnaway Study, a prospective longitudinal study examining the effects of unintended pregnancy on women’s lives, women are three times more likely to be unemployed after being denied a wanted abortion.
“I think this effect would be even greater for sexual minority women since these women are also more likely to lose their jobs, have a hard time finding employment, or be discriminated against at work due to their sexuality,” Nicole Quinones, a M.P.H. Candidate at Vanderbilt University School of Medicine, said. “Restricting access to abortions would only further exacerbate those poor health outcomes.”
Quinones also works as a Patient Services Coordinator at CHOICES: Memphis Center for Reproductive Health. “I even have patients who are already discriminated for their pregnancy status and lose their jobs because their employer finds out they are pregnant.”
“Women who are not sexual minorities will feel these same socioeconomic effects, but women who are sexual minorities will be more impacted by these laws partly because of their sexual orientation. Overall, it just makes women less healthy and makes it harder for them to take care of themselves and their families.”
Is there any hope?
Yes. Luckily, not everyone has given up. There are still wonderful people out there, working day and night to ensure your reproductive rights are protected.
Katy Leopard, assistant director of CHOICES: Memphis Center for Reproductive Health, says it’s a hard time to be a woman and have a daughter in the South. It’s also a hard time to be an abortion provider, she says.
CHOICES, which was founded in 1974 as the first abortion provider in the city after the Roe v. Wade decision, is now one of nine nonprofits left in the country that perform abortions. CHOICES is already challenging one law that puts a barrier between women and abortions — the 48-hour waiting period, which requires women to have a physician visit 48 hours before she can receive an abortion. The law’s supporters say it’s meant to reduce coerced abortions and to allow time for women to carefully consider the information presented by the physician. Leopard calls it a “crazy barrier.”
“Being an abortion provider, every time the legislators are in session, my anxiety goes up,” Leopard says. “Everyone on the anti-choice side is emboldened and empowered. [President] Trump’s rhetoric and the makeup of the Supreme Court make them feel powerful, so they are definitely willing to do a lot more than they were.”
Leopard says she never thought she would have to consider the possibility of Roe v. Wade being overturned, but now she’s “very worried about it. We all should be.” But Leopard says CHOICES is preparing for whatever challenges lie ahead.
“For us, it didn’t make sense to only be an abortion provider,” Leopard says. “It’s an unsafe thing to be, and it was a strategy of the anti-choice movement to carve abortion out and make it this weird thing that’s done in a house somewhere. It re-stigmatizes and supports the stereotype that abortion is some kind of odd, bad procedure. But it’s a part of women’s reproductive health care, and it belongs with all these other things that are about reproductive health.”
If legislation passes, the new all-encompassing model will allow CHOICES to remain open and perform its other services while it challenges the ban in court.
“If you want to be around to fight the fight, then you prepare,” she says. And CHOICES is preparing by building a comprehensive center. “We can’t do abortions? Fine. We’ll do all the other things while we take you to court.”
Do I even want to know what kind of people are on the committee?
No. But I’ll share some of my favorites so far!
Joey Hensley, R-Hohenwald. In 2013 Hensley, who has been married and divorced four times, ran on a platform of Christian family values. He made headlines in 2017, when he was accused of having an extramarital affair with his second cousin while unethically prescribing her opioids. Hensley told Scene that there’s no issue with prescribing his employee-lover-patient-cousin opioids since they were allegedly no longer romantically involved. As recent as June 2019, the Tennessee Department of Health charged and accused him of, once again, writing unethical prescriptions for family members and friends. He won’t get to keep his medical license, but he will definitely be allowed to vote for your rights to be taken away!
Sen. Jon Lundberg R-Bristol. Two days before the Judiciary Committee voted, Lundberg was cyberbullied by a man named Donald. According to Donald, several months earlier, when the Tennessee Heartbeat Bill came before the Judiciary Committee, “Lundberg went wobbly,” and did not vote for the bill. Luckily for Donald, the next hearing took place Monday, Aug. 12. “Will Lundberg show his true colors then? Will the Judiciary Committee vote the Heartbeat Bill out of committee to the full Senate, where real pro-life legislators can add this bill to their impressive list of pro-life achievements?” Donald asked. He then ended his roast with a mild threat, “If there is any doubt in Lundberg’s mind, perhaps it’s time for him to step aside and allow someone with real pro-life convictions to lead Tennessee’s fight for the unborn.”
Sen. Steve Southerland R-Morristown. Steve doesn’t believe you should be able to do what you want with your body, but he does have some interesting quirks. For example, very recently he signed a resolution calling for the state’s Tennessee Blue Book to discuss how people in Appalachia talk. Steve thinks that Appalachian people are often misrepresented and misunderstood by society. Check out the video below to see how people in Appalachia talk!