Tennessee anti-abortion Amendment 1: Voters will decide whether legislature regulates women’s health.

The Really Crazy Anti-Abortion Strategy on the Ballot in Tennessee

The Really Crazy Anti-Abortion Strategy on the Ballot in Tennessee

The law, lawyers, and the court.
Oct. 14 2014 4:06 PM

This Year’s Most Outrageous Anti-Abortion Strategy

Tennessee out-crazies all the other states with its proposed constitutional amendment.

141014_JURIS_NashvilleCapitolBldg
The Tennessee Capitol.

Photo illustration by Slate. Photo courtesy of Stephen Hall/Wikimedia Commons.

You really don’t want to take your eyes off the fight over reproductive freedom for even a minute. Because while you were watching abortion clinics closing across Texas and Louisiana, or the so-called personhood amendments coming back from the dead in Colorado and on the ballot in North Dakota, you were missing some of the really crazy stuff. It’s true. All of that almost pales beside the truly imaginative new effort playing out in Tennessee. Starting Wednesday, and unbeknownst to many of us, state voters there will be asked to amend their constitution to provide that:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

That’s right. Tennessee is trying to amend its constitution to never protect abortion, ever, under any circumstance. And how did the state get here? In 2000, the Tennessee Supreme Court ruled in a case called Planned Parenthood v. Sundquist that the Tennessee constitution affords even more protection than the U.S. Constitution to Tennesseans seeking abortions. The court determined that “a woman’s right to terminate her pregnancy is a vital part of ... the Tennessee Constitution,” and it held that Tennessee could only pass very narrow restrictions on abortion as a result. As part of that decision, the court struck down several laws passed in 1998 by the Tennessee legislature, including a measure requiring hospitalization for second-trimester abortions, an informed consent provision, and a two-day waiting period. Republicans in the state legislature immediately reacted by attempting to amend the state constitution. Those proposed amendments failed to pass the state legislature until 2011. Now it’s on the November ballot.

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Don’t be confused by references to rape and incest and the life of the mother in the language of the proposed amendment. As Eleanor Clift writes, “[T]he second sentence is craftily written to leave the impression that exemptions are either in place, or could easily be put in place.” But the proposed wording would in fact allow the state to regulate all those interests out of existence. There is no question that this measure goes far beyond the proposed “personhood” language in other states to ensure that legislatures could pass any future legislation, including regulations that could ban abortions even to save mothers’ lives or to protect incest victims. It would allow laws that criminalize harm to a fetus or even ban access to methods of birth control deemed to be abortifacients.

Rebecca Terrell, director of Choices, a Memphis reproductive health clinic that provides abortion services, put it this way in an email: “Tennessee women do not need to be protected from their own decision-making, or to be provided with state-mandated counseling that encourages them to act against their own best interests. The regulations that this Amendment would enable our legislators to pass would be appalling.”

The insidious beauty of Amendment 1 is that it operates as a Trojan horse to permit any and all future regulation. And as one local blogger notes, the fact that state legislators won’t disclose which kinds of measures they seek to pass establishes that this is precisely the point. As Stacey Campfield, a Tennessee senator from the 7th District (Knox County) told the Family Action Council of Tennessee: “After [Amendment 1] passes, I have several ideas but for fear of those ideas being used to help defeat Amendment 1, I will refrain from talking about those at this time. I doubt there are any ideas I would oppose that would restrict abortion in Tennessee.”

This referendum has implications that go far beyond the state borders. As all the states surrounding Tennessee passed more and more anti-choice legislation in recent years, Tennessee came to be the state that neighboring women turned to to obtain services denied to them in Alabama, Mississippi, and Kentucky. This meant that by 2010, 1 out of every 4 abortions in the state was sought by an out-of-state patient. Terrell explains it this way: “If Amendment 1 passes, the state of Tennessee would quickly join her Southern sisters in passing the kind of extreme regulations that make access to abortion impossible.  This is, of course, the goal of the amendment’s drafters and supporters.”

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How likely is the amendment to pass? As Molly Redden at Mother Jones has shown, the ballot campaign has turned into one of the most expensive in state history, and so far opponents of the measure have outraised and outspent its supporters. Moreover, as the New York Times notes this week, “Tennessee’s rules for amending the State Constitution set a high bar. In addition to requiring a majority vote, the initiative must receive more than half the number of total votes cast in the governor’s race.” For its part, the Yes on 1 campaign has churches statewide coordinated to observe “Yes on 1 Sundays.”

Polling conducted by Vanderbilt University in May found that 71 percent of state voters oppose amending the constitution to place abortion rules solely in the hands of the legislature, but people don’t turn out for midterm elections in the kinds of numbers that will necessarily defeat this measure. A recent poll conducted by the Family Research Council found 50 percent of respondents saying they support Amendment 1. The discrepancies highlight the extent to which the language of the proposed amendment is confusing and misleading in the extreme.

Supporters of Amendment 1 describe the measure in deceptively benign terms. They are just handing the power back to the legislature to decide whether you have a right to an abortion and removing any worrisome constitutionally protected abortion rights from judicial review: “You’re saying yes to making the constitution once again neutral on the issue of abortion,” Sharon White of the Yes on 1 campaign explained this week. “To me, it puts it all back in the hands of the person through their elected officials. That's how government works. We elect officials that represent our beliefs and desires.” Jack Coleman, another Yes on 1 booster, explained it this way to the Columbia Daily Herald this week: “The Supreme Court justices shouldn’t determine what they believe our constitution is. Let’s let the people decide.”

Supporters of the amendment also claim that allowing the state to promulgate simple abortion laws like those in neighboring states will make the procedure safer for women, claiming that currently state clinics are almost wholly unregulated. This is not true. As the Tennessean explains, the state has already banned the use of telemedicine and enacted parental consent laws, and health plans offered on the state’s health exchange can’t provide abortion coverage. Current law also requires doctors who perform abortions to have admitting privileges at local hospitals. That latter requirement forced the closure of two abortion clinics—one in Knoxville and one in Memphis—that were unable to comply.

Opponents of Amendment 1 are quick to point out that “let the people decide” actually means putting the whole issue of abortion into the hands of legislators who have shown themselves to be something less than “neutral” on the issue of abortion in recent years. Keeping up with the Joneses, when the Joneses are the states all around you shutting down clinics for largely pretextual reasons, is not really a justification for a constitutional amendment. And as Amanda Marcotte points out, keeping up with the Duggars is not really a justification for much of anything. 

The fact is that draconian personhood bills have been defeated around the country precisely because when the rubber hits the road, most of us don’t quite trust our elected legislators to make situation-specific, personal, and often urgent health care decisions in our stead. Amendment 1 may still pass in Tennessee—but only if women are confused into believing that their state legislature has a greater interest in protecting their health and privacy rights than they do themselves.