Abortion Bills Likely Unconstitutional: Tennessee AG

NASHVILLE, TN — The state's attorney general says two abortion bills in the Tennessee General Assembly are likely unconstitutional. In an opinion issued last week, Attorney General Herbert Slatery said proposals to ban abortion after 20 weeks or after the viability of the fetus are both "constitutionally suspect."

Sen. Mae Beavers' bill to ban abortion after 20 weeks and to require abortions performed after the first trimester but before 20 weeks to be performed by a licensed physician in an approved hospital is not scheduled for any hearings before any legislative committee, though it is technically still alive. Slatery wrote that 20 week viability bans in other states have routinely been struck down, starting with the seminal Roe v. Wade decision and most recently in a 2013 circuit court case that struck down a similar Arizona law.

"Under current, controlling U.S. Supreme Court precedent, a state cannot prohibit the termination of a pregnancy before viability of the fetus," he wrote.

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He added that the hospitalization requirement runs afoul of a 2000 Tennessee Supreme Court decision that struck down a similar law then on the books because it did not include a medical necessity exception as required by a 1992 United States Supreme Court decision. Beavers' proposal also contains no medical necessity exception, thus making it "constitutionally infirm."

The post-viability ban sponsored by Rep. Matthew Hill and Sen. Joey Hensley is unlikely to meet constitutional standards either, the AG opined.

A circuit court decision struck down "very similar Ohio legislation" in 1997 as "unconstitutionally vague" because they lacked so-called "scienter provisions" in the parts of the law related to medical necessity or emergency.

"But a scienter requirement is lacking when, as in Ohio’s statute and in the proposed new Tennessee Act, the physician is subject to criminal sanctions for a decision that is by definition based not on guilty knowledge or even recklessness, but on the physician’s 'good faith medical judgment,'" Slatery wrote. "In other words, without a scienter requirement, such statutes impermissibly subject a physician to criminal liability even though he was acting in good faith in determining whether a medical emergency or medical necessity exists."

The proposal also lacks a medical exception for mental and emotional trauma, as required by precedent.

Image via State of Tennessee