A split has emerged between pro-life activists in Tennessee as some are opposing a measure to effectively ban all abortions in the state out of fear such legislation could backfire at the U.S. Supreme Court.
Republicans in Tennessee are considering an amendment to a fetal heartbeat bill introduced by Republican Sen. Mark Prody in August that would ban abortion once a fetal heartbeat is detected, which can be as early as six weeks into a pregnancy. The legislation, which won’t be voted on until at least January 2020, is similar to heartbeat legislation passed in at least eight other states this year.
Last week, the Tennessee state legislature met for a summer study to discuss the proposed amendment to the bill. The heartbeat bill itself has been labeled by critics as a “near-total ban” on abortion. The bill does include exceptions for cases when the mother's life is at risk in a medical emergency.
The proposed amendment defines life as beginning at conception and viability as being confirmed upon detection of human chorionic gonadotropin, a hormone which can be detected in some pregnancy tests.
Among pro-life activists who spoke at the meeting is Jim Bopp, the general counsel for the National Right to Life Committee, the nation’s oldest and largest pro-life advocacy network.
Bopp indicated a level of opposition to the bill at this point in time, fearing such a law could go before the U.S. Supreme Court at a time when there are not five justices willing to overturn previous abortion-rights precedents set in 1973's Roe v. Wade ruling and reaffirmed in 1992 through Casey v. Planned Parenthood.
“What do we know about the current Supreme Court? Well, we know one justice has said anywhere in writing or in a judicial opinion that Roe v. Wade was wrongly decided and that he would overturn it,” Bopp said.
“We know there are four justice who have already voted to reaffirm Roe v. Wade and if given the chance, they would redefine Roe v. Wade as gender discrimination so that every single regulation that touches abortion, conscience clauses, funding, you name it would be declared unconstitutional.”
The Tennessee Right to Life Committee along with a handful of Catholic leaders in the state voiced opposition to the Tennessee heartbeat bill, citing legal concerns that it could be ruled unconstitutional and set the pro-life movement back at a time when there is momentum for pro-lifers under the Trump administration.
But the pro-life American Life League disagrees with those groups.
In an emailed statement to The Christian Post on Friday, American Life League President Judie Brown said the only divide between pro-life organizations regarding the proposed law in Tennessee is that some are fighting to protect babies’ lives while others seek political compromises.
“There are pro-life organizations that work every day to end the killing of the innocent through efforts to educate, to counsel expectant moms, to protest abortion and to politically change the status quo on laws that currently do not protect the babies,” Brown said. “Then there are those pro-life organizations that are politically plugged in with compromise as first on their menu of go to positions.
“Abortion is not a political issue,” she said, “it is an act that results in the death of a preborn baby. The real pro-life advocate works to defend those babies because they cannot speak in their own defense. … We know that God is the author of life, we opt for His laws and His rules, not the Supreme Court's alleged realities or presumed positions,” Brown added.
The state's Republican Lt. Gov. McNally also voiced his concerns about the legal viability of the proposed heartbeat bill. McNally's communications director told The Tennessean that the most recent amendment "does not assuage" McNally's concerns. In March, McNally argued that the heartbeat bill would put the state on the "losing side" of a court battle.
In his comments at the summer study, Bopp warned about the danger of assuming that the Supreme Court as it is currently assembled would reverse Roe v. Wade in whole or in part even though Trump nominated Justices Brett Kavanaugh and Neil Gorsuch in recent years.
“[W]e have four justice who we believe from their general judicial philosophy might be willing or should be willing, to consider an argument that Roe v. Wade was wrongly decided. What other evidence do we have?” Bopp asked. “That’s all we know. There is no objective evidence that we have more than one [justice who will] vote to overturn Roe v. Wade.”
Bopp stressed that in order to get a Supreme Court makeup that is truly willing to overturn Roe v. Wade, Trump must be re-elected along with a Republican-majority Senate in 2020.
Bopp said that he would support more restrictive pro-life measures when Roe v. Wade is overturned.
“But, why would we have a debate on that today?” he questioned. “There is no majority on the Supreme Court that we can identify that would uphold such a thing. Look, divine intervention is God’s decision, not ours. He can do it in His time when He believes the time is right. Absent divine intervention, we have to use our human reason, our human powers to figure out what is the best course.”
Bopp reiterated that there are four justices currently who want to “refashion abortion rights as gender discrimination.”
“Justice Ginsburg advocated this after Roe v. Wade when she was a professor at North Carolina University Law School. She got her other three pro-abortion justices to agree with her in the federal [Partial-Birth Abortion ban] decision in dissent that the right to abortion was gender discrimination,” Bopp stressed.
“What happens if they get five votes. Then every [pro-life] law you have ever passed is unconstitutional and there was no law in the future that you could ever pass that would affect abortion.”
Bopp said that losing at the Supreme Court is not “cost-free.”
“If Roe v. Wade was reaffirmed because the Supreme Court took up a prohibition [law] when they are not willing to overturn Roe v. Wade, we risk reaffirmation of Roe v. Wade,” Bopp said.
“In Casey, we thought there were seven potential votes, seven of nine. There was a good reason to think that. Well, we ended up with four. That loss was not cost-free. Judge Kavanaugh in his [confirmation] hearing said that Casey is a precedent that is entitled to stare decisis effect. In other words, not only do we have to convince him that Roe was wrong, but now because of Casey, we have to convince him that Casey was wrong.”
With Kavanaugh, Bopp says an obstacle has been created and warned not to “casually go into a situation when the result can be negative or devastating to your future prospect.”
Brian Harris, president of Tennessee Right to Life, also testified at the summer study.
"Tennessee Right to Life continues to express sincere concerns at the proposed passage of this legislation," Harris said, according to The Tennessean. "There is not a single state where a heartbeat bill has been upheld or enforced. Not a single child has been saved or a mother helped as a result of this legislation."
Tennessee Right to Life supports a “trigger legislation” titled the Human Life Protection Act, which would ban most abortions in the state if Roe v. Wade were ever to be overturned or a constitutional amendment were to pass giving states the right to outlaw abortion.
David Fowler of the Family Action Council of Tennessese responded to pro-life criticisms of the Tennessee bill in a blog post.
“To disregard judicial politics is foolish, as the pro-life lawyers opposed to the bill repeated ad nauseam. Sometimes you know a majority of the U.S. Supreme Court’s current justices don’t believe in the rule of law as it has been described. That’s when you lay low,” Fowler wrote.
“What is foolish, however, is making prideful assertions about what the rule-of-law-composition of the Court will be at the time any law enacted now finally reaches that Court. Only God knows that. Furthermore, judicial vote prognostications have proved unreliable anyway.”
The pro-life debates in Tennessee come after an Alabama bill was passed earlier this year banning nearly all abortions in the state, a bill that some say was designed to be heard by the Supreme Court as a challenge to Roe.