Sponsored by Sen. Diane Black, a nurse, Senate Joint Resolution 127 was overwhelmingly approved by the Tennessee state Senate last night. To get on the ballot, the Resolution, designed to once again make the state constitution neutral on the issue of abortion, must be passed by both a majority of the Senate and House during this two-year General Assembly cycle and then be approved by two-thirds of the next General Assembly, to be elected in 2010. What’s next?

With the Resolution receiving 24 votes last night, it was approved by one vote more than the two-third margin that will ultimately be required for the Resolution to go on the ballot in 2014. The Resolution passed with the support of all 19 Republicans and 5 Democrats. With the ultimate outcome known long before the Senators took to the floor, there was not a lot of debate.

But there will be plenty of debate in the House, where the Resolution is expected to be taken up in the Public Health Subcommittee in the next week or two. Speaker Williams, keeping his commitment to the pro-life Democrats who supported him, did make sure that the Subcommittee had a majority of pro-life members. This is the exact opposite of the composition in years past, where the Resolution was killed every time.

Expect ‘Poison’ Amendments in the House

The question in the House will be at what point the debate will heat up and unfriendly amendments will be proposed. For those not familiar with legislative “techniques,” opponents of legislation will often offer amendments that in some way undermine the legislation with the hope that the amendment, if adopted, will effectively kill it.

The “poison” amendments that have been proposed to SJR 127 in the Senate over the years include efforts that, using various forms and terms, purport to only create a constitutional right to abortion in cases of rape and incest and to save the life of the mother. No doubt, at least some amendments of a similar nature will be presented in the House.

Some will support the amendments because they know it will frustrate the purpose of SJR 127 and, if the amendments get adopted, will make the Resolution unacceptable to the informed pro-life voter. Others, some perhaps well intentioned, just don’t seem to appreciate the real impact of the amendments on the Resolution.

The issue presented by SJR 127 and, more particularly, the various hostile amendments is not really about whether abortion should be allowed in cases involving rape and incest and when necessary to save the life of the mother. Rather, it is about whether abortion policy should be made by a majority of five unelected people on our state Supreme Court or by representatives elected by and accountable to the people. That is really the crux of the issue. Once that issue is decided, every other issue—whether to allow some or all abortions—will fall into place.

The reality is that someone must decide for our society the answer to the question of what types of abortions will be allowed and under what circumstances. And there are only two governmental bodies in Tennessee that could possibly answer that question: the legislature or the judiciary. So the question is, “Should the unelected members of the Supreme Court make that decision for the people, or should the people through their representatives make that decision for themselves?”

But here is the tricky part. Proponents of the amendments say that these “exceptions” need to be put in the constitution so that women, not legislators, will be in control of the abortion decision in these tough cases.

By “constitutionalizing” abortion in case of rape, incest and the life of the mother, it sounds like it takes the legislature out of the equation. But it does not. Even if such an amendment is adopted, the legislature can, if it so chooses, try to determine the parameters under which the exceptions will apply and under what conditions those abortions can be performed. For example, the legislature could say that even a rape victim needs to be fully informed about the procedure, or it could decide that, to claim the exception, a rape must at some point be reported as a means of adding credibility to the claim.

So if the legislature can still enact laws even if these “exception amendments” are adopted, some might ask, “If the legislature can still pass laws, why don’t the pro-life forces accede to them and accept them?”

The reason is that the court will have final say on the wisdom of the laws regulating and defining these exceptions. And most likely whatever the legislature says, no matter how reasonable to the average person, will most likely be unconstitutional because all such laws will be subject to “strict scrutiny,” the highest level of judicial review.

Strict scrutiny, when applied to legislation in almost any legal context, generally proves to be a death knell to whatever legislation is in question. Even the state’s attorney general, back in 2004, said that “strict scrutiny” would be applicable to any legislation dealing with rape, incest or the life of the mother. In essence, these amendments would put an unelected Supreme Court back in control, defeating the purpose of SRJ 127.

Some might say, “So what? Somebody’s got to be in control. Why not the Court?” Great question. And the answer is found in the fact that neither the legislature nor the judiciary is exempt from making mistakes. If you don’t think the judiciary makes mistakes, then you have forgotten about the Dred Scott case. The “error” in that case didn’t get corrected until after we had a civil war!

The point is that when the judiciary makes a mistake and either goes further than the people would have approved or don’t go far enough, the people are without any effective or immediate remedy.

Yes, the people could vote against retaining a sitting Supreme Court justice. But so what? The court’s decision is still there and unchanged. Point in fact: None of the majority of the judges who “manufactured” the right of abortion in 2000 in the Planned Parenthood v. Sundquist case is still on the bench—but we’re still fighting over what they said.

Since “getting rid of” the offending judge or judges doesn’t do anything, the people are left with the torturous process of amending the constitution, the same process in which we have been engaged for over eight years now. The amendment process can take many, many years, and all the while the court’s “error” is perpetuated.

But those who support SJR 127 without amendment understand that when the legislature makes policy, the people have an effective and timely remedy. As the voters did nationally with the U.S. Congress in 1994 and again in 2006, they can turn the party in power out of office if the “mistake” is of sufficient concern. They can certainly vote out those who vote for the “mistake.” And the legislature, with a majority of each Chamber “seeing the error of their way,” can “correct” the mistake the very next legislative session.

So, all the talk about rape and incest that is sure to come is really, at root, a red herring to the important question, “Who do we want to govern us?” For those who want to be governed by those they can run against and vote out of office, watch who votes for these amendments … and remember their names in the next election. They don’t share your view of governing.

David Fowler