Roy Exum
I’ll admit I know so little about Roe versus Wade that I did not know which side of the argument over abortion either party represented yet I am intensely interested in anything that draws this much passion from the American people. I am an on-line subscriber to the Nashville Tennessean, along with several other news sites that I include in my Morning Readings, and Mariah Timms, who writes on legal matter for the Tennessean, has just authored a column, “What happens in Tennessee is Roe v.
Wade is overturned.” It’s terrific.
But first, here is the background …
ROE VERSUS WADE (From Wikipedia)
“Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction. The decision struck down many U.S. federal and state abortion laws. Roe fueled an ongoing abortion debate in the United States about whether or to what extent abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. It also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.
“The decision involved the case of Norma McCorvey—known by the legal pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed directly to the U.S. Supreme Court.
“In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor ruling that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether to have an abortion. It also ruled that this right is not absolute and must be balanced against governments' interests in protecting women's health and prenatal life.
“The Court resolved this balancing test by tying state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.
“The Court classified the right to choose to have an abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the highest level of judicial review in the United States.”
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WHAT HAPPENS IN TENNESSEE IF ROE V. WADE IS OVERTURNED? HERE’S A GUIDE
Written by Mariah Timms of The Nashville Tennessean
(This article appeared in the Nashville Tennessean on Tuesday, May 3, 2022.)
The U.S. Supreme Court is on the verge of overturning the landmark 1973 Roe v Wade decision legalizing abortion across the nation, according to a draft opinion obtained by Politico.
The published draft has set off a renewed round of fierce controversy around one of the nation's most divisive issues. Here's what to know about it and how it could impact Tennessee.
DID THE COURT OVERTURN THE ROSE V. WADE DECISION?
No. Abortion is still legal in all 50 states.
The justices are set to release a ruling in a lawsuit challenging a Mississippi law this summer. The suit could act as a direct challenge to the landmark 1973 Roe v. Wade decision that found abortion rights are constitutionally protected.
Politico reported late Monday that a leaked draft opinion written by Justice Samuel Alito would overturn the decision.
On Tuesday, Chief Justice John Roberts issued a statement confirming the authenticity of the draft opinion and ordered an investigation into what he called an “egregious breach of trust.”
“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case," Roberts said.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” he said in the written statement.
He added: “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
The opinion did not surprise court watchers, who have long said the conservative bench is likely to overturn Roe before long.
IF ROE IS OVERTURNED, DOES THAT AUTOMATICALLY MEAN ABORTION IS ILLEGAL?
No. Overturning Roe returns the decision on reproductive health care access back to the states.
Tennessee is one of nearly two dozen states certain to ban abortion in the event of Roe being overturned.
Voters amended Tennessee's state constitution in 2014 to specifically remove access to abortion as a fundamental right in the state.
The state in 2019 also passed a "trigger law" that would institute a de facto abortion ban should the Supreme Court overturn its Roe decision. If the law is activated, the Attorney General would notify the Tennessee Code Commission.
Then, within 30 days of that notice, the state would officially have an abortion ban in place. The measure would make it a felony for a doctor to perform an abortion, while women seeking abortions would be exempt from prosecution.
Research shows attacks on the foundation of federal abortion access protections have rapidly increased since 2011, according to the Guttmacher Institute.
More anti-abortion laws — 90 of them — were passed nationwide in the first half of 2021 than in any year since the Roe v. Wade decision was handed down in 1973, research has shown.
The Supreme Court ruled in Roe v. Wade that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester.
Years later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb, which is about 24 weeks.
Since then, states have pushed to define viability at earlier and earlier stages, in many cases now tying it to the moment a "fetal heartbeat" can be detected.
IS ABORTION LEGAL IN TENNESSEE?
Yes.
Although Tennessee has several restrictive abortion access laws on the books, it remains legal to terminate a pregnancy in the state. The state's new abortion laws are being challenged in federal court.
IS ABORTION LE4GAL IN NASHVILLE?
Yes.
Nashville does not have separate reproductive health care laws on its books from those of the state.
The city's top prosecutor, Davidson County District Attorney Glenn Funk, issued a statement hours after the leaked opinion began circulating. In the fall of 2020, Funk declared he would not pursue criminal charges against any patient or doctor for seeking or performing a procedure at their request.
"With regard to reproductive issues, the criminal law must not be used by the State to exercise control over a woman’s body," he wrote in 2020.
On Monday, the eve of election day where he hoped to hold on to the seat, he stood by the statement.
"I am appalled that this assault on a woman's personal health decisions is in jeopardy," Funk said in an emailed statement Monday evening.
Funk's two opponents also criticized the draft ruling.
Sara Beth Myers, a former federal prosecutor, said she was "outraged" at the possible ruling.
"I proudly support a woman’s right to access safe abortion care...There is a right to privacy in the Constitution that protects the right to an abortion, and as District Attorney I will never use the law to violate someone’s civil rights," Myers wrote in a statement posted on social media Tuesday morning.
P. Danielle Nellis, a former assistant district attorney now in private practice, echoed the others in the race.
"I stand with women and our right to exercise autonomy over our own bodies," Nellis wrote in a statement posted to social media Tuesday afternoon. "I stand with women as we exercise that autonomy whether it be through choice and family planning, escaping a domestic violence situation, healing after a sexual assault, or existing without the interference of politics that place us at risk in so many situations."
Neither Myers nor Nellis issued a statement specifying whether they would prosecute charges under a ban.
WHAT ARE TENNESSEE’S ABORTION LAWS?
A slate of restrictive abortion laws have led Tennessee's legislative agenda for the past few years, including a comprehensive package passed in 2020 with full support from Gov. Bill Lee.
The 6th Circuit Court of Appeals last summer upheld a 48-hour waiting period passed under previous Gov. Bill Haslam that had lingered in the courts since 2015.
The law requires a patient seeking an abortion first to be counseled by a doctor in-person and then wait at least 48 hours before returning for an abortion procedure.
Tennessee's 2020 laws include requiring abortion clinics to post a sign in the waiting area and in patient rooms informing people that it may be possible to reverse a medication abortion.
There is no medical consensus that reversing such a procedure is possible. While there is an exception to the restrictions if a woman's life is in danger, there are no exceptions for rape or incest.
If the courts strike down the six-week ban, before most people know they are pregnant, the 2020 legislation automatically enacts cascading abortion bans in conjunction with the detection of a fetal heartbeat at eight, 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks of gestation. The law also prohibits abortions if the doctor knows the patient is seeking the procedure due to the fetus' sex, race or Down syndrome diagnosis.
The laws remain tied up in the courts. In February, a federal appeals court reinstated the so-called reason ban.
The 6th U.S. Circuit Court of Appeals granted the request by the Tennessee attorney general’s office to reverse course and temporarily allow the so-called reason ban to be enforced. The 6th Circuit had blocked that provision in September after previously allowing it to go into effect in 2020.
Tennessee bans the use of telehealth for medication abortion and limits when state and public insurance can cover abortion services.
Lt. Gov. Randy McNally, R-Oak Ridge, said in a Tuesday statement the General Assembly has passed some of the most "aggressive pro-life legislation" in the nation.
"We have challenged current court precedent with Gov. Lee's landmark heartbeat bill and we have prepared for an overturn of Roe by passing a trigger law that goes into effect immediately upon reversal," McNally said. "Whatever the court ultimately decides, Tennessee will continue to be one of the most pro-life states in the nation — whether under the current court precedent or a new one.”
ARE THERE ABORTION CLINICS IN TENNESSEE?
Yes.
But with fewer than a dozen clinics across Tennessee that offer services — and similarly few in neighboring states — accessing abortion care may be out of reach for low-income or rural pregnant women who struggle to get in to see a doctor, let alone at short notice.
Nonpartisan organization Healthy and Free Tennessee maintains a list of abortion care providers, including:
* -- Memphis: CHOICES Memphis Center for Reproductive Health; Planned Parenthood - Memphis Health Center
* -- Knoxville: Mountain Access Brigade; Knoxville Center For Reproductive Health; Planned Parenthood - Knoxville Health Center
* -- Bristol: Regional Women's Center
* -- Nashville: carafem Health Center Nashville; Planned Parenthood - Nashville Health Center
* -- Huntsville (Ala.): Alabama Women's Center
DO AMERICANS SUPPORT ABORTION?
About 49% of the nation said that abortion should be "legal and accessible" in USA TODAY/Ipsos poll published this month. Only about a third of Republicans felt that way, compared with 73% of Democrats.
(The Associated Press contributed to this report. Melissa Brown contributed. Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.)
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