Through a 38-minute video and a separate blog post, the uniqueness of the Heartbeat Bill that the state Senate Judiciary Committee will consider in its Summer Study has been explained in great detail the Family Action Council of Tennessee (FACT).
The video, which features FACT’s CEO Gary Humble and the organization’s Founder and President, David Fowler, is an interview-style format discussing SB1236 as it will be studied during the two-day session beginning on August 12.
After a Heartbeat Bill, which bans abortion after the heartbeat of an unborn child is detected, passed the state House in March, the Senate version of the Heartbeat Bill was sent to Summer Study by the Judiciary Committee.
At the time of the Senate Judiciary Committee’s action, SB1236 already differed greatly from HB0077.
The Summer Study is scheduled to include testimony from at least 26 individuals on both sides of the pro-life issue and the bill itself, over the course of the two days.
The information provided by FACT through the blog and video explains that, despite the common assumption, not all heartbeat bills are the same.
In fact, even in Tennessee, the Senate bill is a completely different bill than that passed in the House.
As Fowler explains it, the Senate bill is grounded in a different constitutional basis from the House version and is also unique from all of the heartbeat bills that have ever been passed before.
The basis of Tennessee’s SB1236 is the 9th Amendment to the U.S. Constitution, which states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The framers, Fowler says, understood that our nation and our states operated on the basis of common law, that people have certain absolute rights such as the right to life. Fowler says the right to life is absolute, in the sense that it can’t be removed without due process.
Grounding Tennessee’s Heartbeat Bill in the 9th Amendment and pitting it against the 14th Amendment relative to personhood is a case that has never been in front of the Supreme Court, according to Fowler.
The basis of the discussion is around the 1973 landmark decision Roe v. Wade, wherein the U.S. Supreme Court decided that a woman’s right to privacy in having an abortion without excessive government restriction is protected under the U.S. Constitution.
As Fowler points out, Roe weighed the interest of the state and the interest of the woman in having an abortion. That decision, says Fowler, was based on not knowing what a person is, freeing up the ability to focus on the woman as opposed to the state’s interest.
As such, Roe said the woman’s right to abortion ought to be unfettered during the first trimester. During the second trimester, legislation can be passed to protect the health of the mother. Only in the third trimester can the unborn child be protected, Fowler explains, because only then does the state’s interest in protecting the child become compelling.
Fowler and Humble discuss the various “breadcrumbs” that have been left through previous opinions by the Supreme Court Justices including Roe and several other cases. Those “breadcrumbs” helped guide the Senate’s version of the Heartbeat Bill.
Fowler laid out a sort of timeline of Supreme Court opinion “breadcrumbs”:
1973 – Roe establishes an artificial trimester basis and says that the state has no interest in the third trimester
1983 – Justice O’Connor writes a dissent that there is an arbitrary notion of prognostic viability – or the odds that an unborn child will make it to personhood – and questions why one point during a pregnancy is any better than any other
1992 – in Planned Parenthood v. Casey, Justice O’Connor writes an opinion to Justice Blackmun and all others that considered Roe, saying that it makes no sense and that Roe is in conflict with itself by saying that the state has an interest in potential life, but it doesn’t let the state assert that right until the third trimester.
2007 – in Gonzales v. Carhart, in a five-four decision that the U.S. Congress’s 2003 Partial-Birth Abortion Ban Act was Constitutional, Justice Ginsburg said the lines had been blurred by making no distinction between viability and unviability in addition to injecting moral concerns. Ginsburg said when there was a chance to reaffirm Roe and Casey, the Court didn’t but presumed it instead.
2016 – Whole Woman’s Health v. Hellerstedt was significant for five Justices coming together and not saying that Gonzales was wrong in adding morals or that Justice Kennedy or O’Connor were wrong in saying that the state’s interest extends throughout the period of pregnancy, or that Gonzales didn’t actually blur the lines.
Fowler says all of the cases decided on the 14th Amendment are not conclusory or binding on the 9th Amendment, which is why he thinks this is a good strategy.
“The court has indicated where it’s going and their decisions are incoherent, inconsistent and arbitrary and they know it, but nobody has pushed them about it,” added Fowler.
Fowler understands the point of the other side of the argument, when five justices give their understanding of the law, what’s the point of going back to them the next year and telling them you’re wrong. As Fowler says, “They’re not going to admit they made a mistake.”
Typically, great weight is given to their opinions and reasons, says Fowler, until such time as new history, new evidence, new science or the composition of the court changes. Over the past 46 years, all of those things have changed, reminds Fowler, but we’ve been afraid to just assert them.
“The science is making it very uncomfortable for them,” Fowler points out.
Humble said for those who say now is not the time, we can look at the science and can literally watch a baby in the womb sucking its thumb and playing with their toes. As such, he asks himself, “If not now, when?”
Humble concludes that for those who might be on the fence, to his knowledge there has never been an argument this strong to attack the faulty premise he and Fowler discussed.
The full FACT video on the Senate version of the Heartbeat Bill, SB1236, can be watched here.
The FACT blog, “Shining the Light on Roe v. Wade and the ‘Heartbeat’ Bill Controversy” can be viewed here.
The agenda for the Senate Judiciary Committee Summer Study on August 12 can be viewed here.
The agenda for the Senate Judiciary Committee Summer Study on August 13 can be viewed here.
The Senate amendment to SB1236 can be read here.
The Senate Judiciary Committee Heartbeat Bill Summer Study can be watched live here.
Laura Baigert is a senior reporter at The Tennessee Star.