by Steven Ertelt
March 7, 2008
Nashville, TN (LifeNews.com) — The Supreme Court may have upheld a federal partial-birth abortion ban as constitutional but the Tennessee Attorney General says a state ban could be suspect. Bob Cooper, a Democrat, says a ban — and most other pro-life legislation — might run afoul of the Tennessee Constitution’s privacy clause.
The Tennessee Supreme Court previously issued a ruling that pro-life groups have been trying to counter that misuses the privacy clause to essentially create an unlimited right to abortion.
As a result, Cooper says a state version of the partial-birth abortion ban and other pro-life legislation that may be upheld in federal courts could be struck down in state courts.
The state Supreme Court in 2000 invalidated state laws that required a 48-hour waiting period, a requirement to inform women about fetal development and abortion risks and alternatives, and a requirement that all first-trimester abortions be done in a hospital.
Cooper said a parental consent requirement and some other bills placing limits on abortion might still be permissible under the state constitution but he said that "the matter is not free from doubt."
Abortion advocates have already seized on the opinion and said it shows a constitutional amendment pro-life groups have been supporting is unnecessary.
Senate Democratic Caucus spokesperson Mark Brown told AP that Cooper’s opinion shows some abortion limits could be put in place without the amendment.
"We don’t understand why there are still factions out there that claim we have to amend Tennessee’s Constitution to provide for common-sense restrictions on abortion," Brown said.
State Sen. Diane Black, the sponsor of the amendment to make the privacy clause abortion neutral and the legislator who asked for Cooper’s opinion, disagreed.
"There is still a constitutional issue there," she told AP. "I don’t want to put this state back into the courtroom again."
The amendment, SJR 127, passed the state Senate in December 2007 but failed in a House subcommittee last month.
The House Public Health and Family Assistance Subcommittee defeated the proposal on a 6-3 vote as the Democratic-controlled panel has done before. In 2006, the full Senate signed off on the idea on a 24-9 vote but the same House subcommittee killed the measure.
In 2000, the Tennessee Supreme Court ruled 4-1 that the Tennessee Constitution contains a fundamental abortion right even broader than Roe v. Wade or the federal constitution. The decision struck down numerous pro-life Tennessee laws that were helping women and limiting abortions.
The amendment says "nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion."
The measure would essentially nullify the decision and allow the state to enact limits on abortion or ban abortions if Roe v. Wade is ever overturned.
The amendment would go to voters for their approval but only after the state legislature approves it by a two-thirds vote in two consecutive legislative sessions. The legislature hasn’t approved it once yet because of the committee.
In 2003, 14,933 abortions were reported performed on women residing in Tennessee. In 2004, the number dropped to 13,902, a 6.9% decline or 1,031 fewer abortions.
Related web sites:
Cooper’s opinion – https://www.attorneygeneral.state.tn.us/op/2008/OP/OP40.pdf
Tennessee Right to Life – https://tennesseerighttolife.org