The Tennessee Senate judiciary committee held a second day of hearings Tuesday in a 'summer study' session of a bill regulating abortion.
In its current form, the bill would define an unborn child's viability as starting from conception. Legislators who support the proposal hope it would find sympathetic ears at the US Supreme Court.
House Bill 77 (Senate Bill 1236) was passed by the state House in March, but the Senate judiciary committee voted 5-3, with one abstention, on April 9 to defer it to “summer study.”
SB1236 would have banned abortion from the detection of a fetal heartbeat, usually around six weeks of pregnancy. It was opposed by the state's bishops, and Tennessee Right to Life, over concerns it would not stand up to judicial scrutiny.
In choosing to send the bill to summer study, the committee chairman, Sen. Mike Bell said it had “the best of intentions,” The Tennesseean reported.
“But to be successful in the fight to protect the unborn, strong conviction is not enough. We must also have the proper legal and constitutional strategy. I can assure you the left will use every legal means at their disposal to ensure abortion remains legal, unrestricted and readily available. We must do likewise to prevent it.”
Bell told the bill's sponsor, “I can assure you your bill is not dead.”
Sen. Mark Pody, its sponsor, has amended SB1236 effectively to declare viability as beginning from conception: “A pregnancy is presumed to exist and to be viable upon finding the presence of human chorionic gonadotropin (HCG) using a test that is consistent with standard medical practice.” Some court rulings, such as Planned Parenthood v. Casey, have linked governments' ability to regulate abortion with the viability of the child.
The summer study was held Aug. 12-13, and attracted hundreds of spectators on both sides of the problem. The committee is hearing testimony from both pro-life and pro-choice advocates.
Bell suggested during the study Aug. 12 that the committee believes the viability definition “acts as an argument that would resonate with the (Supreme) Court,” according to The Tennesseean, and some pro-life advocates suggested the Ninth Amendment's unenumerated rights as a route for overturning Roe v. Wade.
“We want a vehicle to lead the Supreme Court to consider, I hope, overturning or at least chipping away at Roe v. Wade,” Sen. Kerry Roberts told CBS News.
But Jim Bopp, an attorney with the National Right to Life Comittee, told the legislators that “To enact legislation we have to live in the real world. We have precedent we cannot avoid with a clever legal argument."
He called the proposed definition of viability “irrational,” adding: “It makes us look foolish. And I do not want to look foolish."
During the study Aug. 13, Bell made a point of telling a mother attending the hearing that she needn't take her crying child out, saying that children are welcome in Tennessee.
During the summer study, the committee did not vote on the bill; the measure will not be voted on until the state legislature reconvenes in January 2020.
Earlier in the year, when HB77 remained a 'heartbeat bill', Gov. Bill Lee indicated he would sign it should it reach his desk. His deputy, Lt. Gov. Randy McNally, had criticized the bill on the grounds that it would be overturned in the courts.
Though the Tennessee bishops and other pro-life groups opposed the bill, they voiced support for another bill, the Human Life Protection Act, that would automatically ban abortion in the state in the event that Roe were overturned.
Tennessee currently prohibits abortion after the 20th week of pregnancy, and requires a woman to wait 48 hours before receiving an abortion.
In 2014, voters in the state approved an amendment to the state constitution that said, "Nothing in this Constitution secures or protects a right to abortion or the funding of an abortion.”