Aborting the ‘I’m Pro-life’ Deception

In Tennessee there are a lot of procedural skirmishes that take place before a pro-life bill ever passes. And those skirmishes tell you more about if a candidate really is pro-life or is just claiming to be “pro-life.”

In Tennessee it’s not uncommon for candidates from every party to say they are “pro-life.” That’s good. But it is also meaningless. Find out why.

The reason the mere statement, “I’m pro-life,” is meaningless is because there are a lot of procedural skirmishes that take place before a pro-life bill ever passes. And those skirmishes tell you more about where a candidate stands on the issue of life than any self-serving statement.

SJR 127 Passed Only After a Great Struggle

Without doubt, the most important pro-life piece of legislation over the last eight years has been Senate Joint Resolution 127. SJR 127 is a proposed amendment to the state Constitution that would allow voters to decide if abortion should be a fundamental right in our state Constitution. Back in 2001, the Tennessee Supreme Court, without the consent of the people, created a state constitutional right to abortion. And SJR 127 is intended to give you, the people, a say in that matter.

After this election, the legislature will have to vote on whether to put this on the ballot for you to vote on. Two-thirds of the legislators will have to vote to put it on the ballot. But this pending vote didn’t come without a great struggle.

For seven years, SJR 127 would pass the Senate and then die in a pro-choice stacked House subcommittee. But in the last legislative session, in 2009, SJR 127 finally got to the House and Senate floor and passed the first of the two times required by the Constitution for an amendment to get on the ballot. The vote on the “second time” will come after this upcoming election. That’s why it’s important to know who says they are pro-life and who is unreservedly pro-life.

Simply Voting for SJR 127 Isn’t Enough

You cannot tell simply by asking if your legislative candidates will vote for SJR 127. You cannot tell simply because the incumbent said he or she voted for SJR 127 back in 2009. All that is good and it’s good to know, but it doesn’t tell you everything you need to know.

For example, in 2008, an attempt was made by Rep. Bill Dunn (R-Knoxville) to bring SJR 127 straight to the House floor for an up or down vote after it had failed yet again in subcommittee. There were four procedural votes trying to kill Rep. Dunn’s effort before he ever got a straight up or down vote on whether to bring SJR 127 to the floor. Even though the procedural efforts were killed (with the help of all Republicans and six stalwart pro-life Democrats) the ultimate vote on whether to have a floor vote failed 55 to 40. Even though there was a majority, because the Resolution had failed in the subcommittee, Rep. Dunn had to get a two-thirds vote (66 votes).

The Real Proof Is How They Voted on Amendment 2

Then in 2009, when SJR 127 finally got to the House floor for a straight up or down vote, there was an attempt to add an amendment (House Amendment 2) that no pro-life organization in Tennessee supported. It was essentially a corrected version of an alternative proposal known as HJR 061 by Rep. Fincher (D-Cookeville). Fortunately, the pro-life legislators voted to table Amendment 2, killing it. However, those who voted “no” on the motion to table were obviously interested in keeping the debate on Amendment 2 going for some reason. So you really need to ask an incumbent legislator if he or she voted for or against the motion to table House Amendment 2. Those Republicans and Democrats who voted “yes” are unreservedly pro-life.

That being said, you will find some incumbents who will tell you that House Amendment No. 2 is also pro-life. So, rather than argue about it, like kids on a school-yard playground, I’ll just let the foremost legal expert in America on state constitutional rights to abortion, Paul Linton, Esquire, tell you what he thinks of HJR 061 that was the basis for the amendment that was offered (or see the text of his full remarks):

Now I would likely to address briefly HJR 61. … It should be immediately apparent that HJR 61 would enshrine abortion as an express right under the state constitution, something that no other State has done or, to my knowledge, has even contemplated doing. HJR 61 is objectionable on several grounds.

First, it would require public funding of abortion in circumstances not required by either the federal constitution (rape, incest and health of the mother) or the current version of the Hyde Amendment (health of the mother). [Editor’s note: In the interest of integrity and fair reporting, this provision was changed by the sponsor of the amendment that was later offered on the House floor by Rep. Gary Odom (D-Nashville).]

Second, it would codify the Tennessee Supreme Court’s decision in Sundquist and permanently deny the General Assembly any flexibility in determining whether and under what circumstances abortions for rape, incest and the health of the mother should be allowed in the event Roe v. Wade is overruled. Moreover, even with respect to the mandated exceptions for rape and incest, the language of HRJ 61 does not, by its terms, allow the State to require that the rape or incest be reported to the proper authorities.

As a consequence, HJR 61 could prevent the State from discovering the perpetrator in circumstances when rape or incest has occurred and in detecting false claims of either.

Third, by employing undefined terms–rape, incest, health of the mother–HJR 61 would confer on state courts, not the state legislature, the power to determine what constitutes “rape,” “incest” or “health of the mother.” Conferring such power on the courts is particularly troublesome with respect to the “health” exception that would be mandated by HJR 61. The Supreme Court has given an extremely broad reading to the term “health” in the abortion context….

A constitutional amendment that would mandate an undefined “health” exception would probably be interpreted by the state supreme court to allow abortions in virtually all circumstances, including an abortion sought for the “mental health” of the woman. Mental health exceptions to abortion statutes were widely abused before Roe v. Wade was decided, and most likely would be abused if Roe were overruled and the issue of abortion were returned to the States. HJR 61 should be rejected. [Center for Women v. Knoll, 61 F.3d 170 (3d Cir. 1995). Similarly, if HJR 61 were adopted (and Roe were overruled), the Tennessee Supreme Court could hold that a reporting requirement was not authorized by the amendment and, therefore, could not be imposed as a condition of obtaining an abortion in cases of rape or incest.] (Emphasis has been added.)

In other words, HJR 061 and House Amendment No. 2 would actually have written into our state Constitution a virtually unlimited right to abortion that no other state in America has or has even contemplated trying to put in their constitution.

While not knowing where legislators stand on judicial elections could hurt you, not knowing where your legislator stands on these behind the scene pro-life skirmishes could kill somebody.