Ohio’s Right to Life organization supported and celebrated the state becoming the seventh to pass a “Heartbeat Bill” banning abortion once a fetal heartbeat is detected.
In contrast, Tennessee’s Right to Life organization opposed the “Heartbeat Bill” introduced in this session’s Tennessee General Assembly, and cheered when a State Senate Committee last week sent it off to “summer study” instead of passing it.
In fact, Ohio’s Right to Life issued a press release the day the Human Rights and Heartbeat Protection Act (SB23) was signed into law by Ohio Governor Mike DeWine that featured a picture of the organization’s team standing beside the Governor during the signing ceremony.
Ohio’s law bans an abortion after a fetal heartbeat is detected, usually after about six weeks from conception.
According to a January 2019 report of The Columbus Dispatch, Ohio’s Right to Life support of the legislation is relatively new, but it went all-in by putting the bill at the top of their legislative agenda.
“It spent years opposing or remaining neutral on the measure,” reported The Dispatch. “But more recently, with President Donald Trump naming two justices to the U.S. Supreme Court and Gov. Mike DeWine indicating he will sign the bill, the group is now firmly supportive of its passage.”
Previously, Governor John Kasich signed 21 bills into law that reduced abortion rights, but twice vetoed heartbeat bills.
“A detectable heartbeat is the clearest indicator that life is present,” said Mike Gonidakis, president of Ohio Right to Life. “Ohio continues to lead the nation in advancing pro-life policy and we are excited to engage our pro-life legislature and governor,” per The Dispatch report.
Meanwhile, Tennessee had hoped to lead in the pro-life movement, with Speaker of the House Glen Casada (R-Franklin) being committed to the issue and new Governor Bill Lee who has said he would sign a Heartbeat Bill into law.
Perhaps counterintuitively, standing in the way has been Tennessee’s Right to Life as it opposed the “Heartbeat Bill.”
However, the organization did not cite on their website a specific reason for their opposition or offer any solution so they could support the proposed legislation under HB 0077 and SB 1236 sponsored by Representative Micah Van Huss (R-Jonesborough) and Senator Mark Pody (R-Lebanon), respectively.
As reported by The Tennessee Star, Sen. Pody expressed his disappointment that Tennessee Right to Life (TNRTL) would be the ones standing in the way of the Heartbeat Bill. As sponsors of the Heartbeat Bill, neither Sen. Pody nor Rep. Van Huss were approached by TNRTL during this legislative session with regard to making the bill one that they could support.
Family Action Council of Tennessee’s (FACT) David Fowler had earlier also opposed Tennessee’s Heartbeat Bill. After it was amended, however, he became one of its staunchest supporters. In fact, Fowler and Murfreesboro-based obstetrician and gynecologist Dr. Brent Boles both testified on the bill in the state Senate Judiciary Committee last week, as The Star reported.
The concern usually expressed is that such a law will be struck down in the courts as unconstitutional and that legal fees will be awarded to Planned Parenthood, and that will provide funding to the abortion provider.
American Thinker reviewed the federal circuit courts in an article, titled “How Liberal is Your Federal Circuit Court” in December 2017. The 6th Circuit federal court of appeals covers all of Tennessee as well as Kentucky, Michigan and Ohio.
The 6th Circuit, according to American Thinker, is an “oasis of conservatism” like the 5th Circuit. While party affiliation doesn’t necessarily define ideology, the 6th Circuit has eleven Republicans and five Democrats. But, with a total of three, it also has the most Trump appointees of the twelve circuits.
Further, FACT’s Fowler opined that the 6th Circuit having recently upheld Kentucky’s ultrasound law gives hope to Tennessee’s Heartbeat Bill by using the words “unborn child” or “unborn life” 30 times in its opinion, which is a recognition that abortion takes the life of a child. Secondly, and more importantly according to Fowler, is that the court approved another circuit court’s decision that acknowledges abortion “terminate(s) the life of a whole, separate, unique, living human being.”
This is important because any appeal of Tennessee’s Heartbeat Bill would go to this court.
It would take such a legal challenge in order for there to be any hope of overturning Roe v. Wade.
That’s where the bill that TNRTL life does support comes in, called the Human Life Protection Act as HB 1029 and SB 1257 by Representative Susan Lynn (R-Mt. Juliet) and Senator Dolores Gresham (R-Somerville).
Also known as the “trigger bill,” the Human Life Protection Act would make abortions illegal in Tennessee upon the overturning of Roe v. Wade.
While the legislation is certainly pro-life and Tennessee must have such a law in place should Roe v. Wade ever be overturned, it has no potential to stop abortions now or to initiate a legal challenge to Roe v. Wade.
While TNRTL expressed concern about the constitutionality of the Heartbeat Bill, there are questions about the constitutionality of the Human Life Protection Act trigger bill as well.
During a late March meeting of the House Public Health Subcommittee while discussing the Human Life Protection Act, the Subcommittee members heard testimony from the House Director of Legal Services, Anastasia Campbell, who was called into the meeting in addition to the Committee Attorney Matt King.
Campbell cited issues with the proposed language of the Human Life Protection Act which she said “would cause constitutional questions under current Supreme Court precedent.”
The Human Life Protection Act failed that day in the House Subcommittee by a vote of 4 to 3.
Subsequently, House Assistant Majority Leader Ron Gant (R-Rossville), who stood beside Rep. Lynn as she presented her bill to the House Subcommittee where it failed, made a motion last week to recall the bill to the full House Health Committee, as reported by The Star.
Following the passage on April 9 of the Human Life Protection Act in the State Senate Judiciary Committee and the effective defeat of the Heartbeat Bill by sending it to “summer study,” TNRTL issued a statement it sent via email with the subject, “Please Thank These Pro-Life Heroes.”
In that emailed statement, TNRTL said “Tennessee’s proposed Heartbeat law is not significantly different from those already struck down in each state where it has passed,” contradicting what the Senate Bill sponsor Pody and FACT’s Fowler said in testimony on the bill.
State Representative and Speaker Pro Tem Bill Dunn (R-Knoxville) has been a vocal critic of the Heartbeat Bill and did not sign on as a co-sponsor. Dunn advocated for the Human Life Protection Act on the floor of the House during the discussion of the Heartbeat Bill on March 7, even though the Human Life Protection Act sat “off notice” in the House by the bill’s sponsor.
According to the Foundation Center, which advances knowledge about philanthropy in the U.S. and around the world and displays IRS Form 990 for non-profits, Dunn’s wife Stacy is an employee of Heartbeat Bill opponent Tennessee Right to Life per the 990 forms from 2016, 2015 and 2014.
Lt. Governor and Speaker of the Senate Randy McNally (R-Oak Ridge) issued a statement following the Senate Judiciary Committee’s vote to send the Heartbeat Bill to summer study. McNally’s statement mirrored the language that Senator Mike Bell (R-Riceville) read during the meeting as he made the motion to send the bill to summer study.
McNally was supportive of the Committee’s decision for summer study and made specific mention of Tennessee Right to Life’s position, “Constitutionally, as Tennessee Right to Life points out, the bill is flawed in its current form.” This despite the fact that McNally initially backed the measure, even saying that if Tennessee’s Attorney General thinks the fetal heartbeat abortion ban is unconstitutional, lawmakers might need to consider hiring outside counsel, according to The Tennessean.
In February, the Catholic Diocese of Knoxville issued a statement, “Bishops issue joint statement on Tennessee ‘Heartbeat Bill,” from Bishops Richard F. Stika of Knoxville, J. Mark Spalding of Nashville and Joseph E. Kurtz of Memphis.
In part, the statement read, “We believe it would not be prudent to support the ‘Heartbeat Bill’ knowing the certainty of its overturning when challenged.”
Before going on to encourage support of the Human Life Protection Act, the statement from the religious-turned-legal experts reads, “Instances like these remind us that we must be prudent and support other pro-life pieces of pro-life legislation that stand a better chance of being upheld in the courts and, possibly, become the vehicle that forces the U.S. Supreme Court to overturn Roe once and for all.”
That is a curious position, in that it will take the passage and challenge of a law like the Heartbeat Bill for the U.S. Supreme Court to be able to consider the overturn of Roe, something that the Human Life Protection Act will not do.
For pro-life advocates, ideally, both bills would pass the General Assembly and become law in Tennessee so that the life of the unborn would be protected before and after the overturning of Roe v. Wade.
The Human Life Protection Act HB 1029, as a result of Gant’s recall, is scheduled to be heard on the final calendar of the House Health Committee on Tuesday, April 16.
Laura Baigert is a senior reporter at The Tennessee Star.