NASHVILLE, Tennessee — Hours prior to the scheduled 1 p.m. start of the much-anticipated Summer Study, Senate Hearing Room I of the Cordell Hull Building, attendees filled the room to standing room only status.
By noon, the eighth-floor conference room was also overflowing with pro-life supporters, gathered to pray prior to the proceedings. Bill sponsor, Senator Mark Pody (R-Lebanon), was joined by Dr. Brent Boles, who will testify on behalf of the bill from a medical standpoint on Tuesday, and Senator Janice Bowling (R-Tullahoma), who is a member of the Senate Judiciary Committee, among others.
There was sea of red shirts, denoting support for the protection of life, in the Senate Committee Room and in the eighth-floor conference room.
While there were opponents to the legislation, mostly dressed in black and outnumbered by those wearing red, they were identifiable primarily by the pink Planned Parenthood stickers or buttons they wore.
At right around 1 p.m., the meeting was called to order by Chairman Mike Bell (R-Riceville), donning a red necktie.
In addition to the Senate Judiciary Committee members, Senate Majority Leader Jack Johnson (R-Franklin), Senator Paul Rose (R-Covington) were present and Senator Joey Hensley (R-Hohenwald) joined shortly thereafter.
With the overwhelming turnout and standing room only condition of the Senate Hearing Room, Chairman Bell announced that the fire marshal requires that all of those who did not have a chair must leave the room. From Senate Hearing Room II and House Hearing Room II, said Chairman Bell, attendees would be able to watch the proceedings.
Chairman Bell opened the meeting by saying that there is no issue that creates this much passion. Having said that, Chairman Bell asked for decorum and that attendees not clap, applaud, boo or other reactions that would disrupt the proceedings.
For those who left the hearing room where the proceedings were held, they watched from monitors located in the hallway outside the room, in the cafeteria, the two other hearing rooms as well as the eighth-floor conference room.
While state law enforcement presence was stepped up beyond the norm, despite the passions on both sides of the pro-life issue as well as the bill itself, all of those in attendance gathered peaceably.
Once the meeting was underway, Chairman Bell asked Elizabeth Insogna, Office of Legal Services, to review the status of heartbeat bills passed by other states, including Arkansas, North Dakota, Kentucky, Mississippi, Ohio, Georgia and Louisiana.
The meeting proceeded according to the published agenda with testimony from the witnesses listed beginning at about 1:15 p.m.
Adam J. Macleod, Professor of Law, Faulkner University (Montgomery, Alabama) made three points as an expert relative to the 9th Amendment, on which the Senate version is based: there are rights Americans enjoy by virtue of ancient and customary law; the right to life is known as an absolute right in common law; and, the right to life is enjoyed by all natural persons, including the unborn, aged and infirm.
Nate Kellum, President and Chief Counsel of Center for Religious Expression, a 501(c)3 that provides legal defense for cases with constitutional implications. Mr. Kellum testified that he agrees wholeheartedly with the basis of the amended Senate Bill being the 9th Amendment, that it is constitutionally defensible and would survive Supreme Court scrutiny.
David Fowler, President and Founder of Family Action Council of Tennessee (FACT) testified that he supports the bill before the Committee and strongly concurs with Mr. Kellum’s testimony. Fowler said the bill, grounded in the 9th Amendment versus the 14th Amendment, has not been at issue with any of the previous cases. The Senate version of the bill creates a conflict between two constitutional provisions that the Supreme Court has never heard before, explained Fowler.
Fowler advised that the Senate version is not a heartbeat bill, that the terminology should be out of your vocabular as it is a 9th Amendment bill as Mr. Kellum testified.
Chairman Bell asked Fowler to provide the background to the Committee on how he came to use the 9th Amendment. Fowler explained that it was related to the work he did on the challenge to the 2015 Obergefell v. Hodges case. Bell pointed out that Fowler doesn’t have a good track record with his Obergefell challenge and asked for some level of confidence that this could resonate with the courts.
Fowler responded that he filed two lawsuits, both being dismissed on standing not on the merits of the case. Fowler got an opinion from Supreme Court clerk John Eastman, who said that Fowler is right about Obergefell.
Fowler, as the architect of Senate Bill SB1236, said he did not and would not support the House version of the bill.
He explained the features of the Senate bill in its current form, as reported by The Tennessee Star, and covered in a FACT video and blog post.
Dr. Randy Davis, TN Baptist Mission Board was welcomed by Chairman Bell, as a fellow Baptist. Chairman Bell said, for the benefit of the audience, that Dr. Davis is a faith leader representing the pro-life side and that one would be testifying tomorrow representing what he called the Planned Parenthood side.
Dr. Davis started his testimony describing the shocking scene of Governor Andrew Cuomo “defiantly poking his finger to the audience to cheers.” Dr. Davis said his thought was, “God Help us, that man has just signed the death sentence of thousands upon thousands of children. Have we sunk so low that we rise to our feet to celebrate the murder of unborn children, many of whom are moments away from being placed in their mother’s arms.”
That was a moment Dr. Davis said he never wants to see again, which he said awoke a sleeping giant. As a result, Dr. Davis said, the Tennessee Baptists have just begun to rally for life, initiating “I stand for life.”
Through that, said Dr. Davis, thousands of Tennesseans have indicated their support for legislation protecting their most vulnerable citizens.
Dr. Davis said that legislators are more apt to pass laws that protect unborn animals than unborn children. “Let’s be honest,” said Dr. Davis, “abortion is largely a violent form of birth control.”
During the question and answer period, Senator Bowling said she kept saying “Amen” during Dr. Davis’ testimony, but had her microphone off.
While Chairman Bell said “There’s not a thing that you said that I would disagree with or take issue with about abortion and what it says about the culture and what it means for our culture,” he posed questions that revealed his concern about the strategy of incremental steps or trying to overturn Roe “in one fell swoop.”
Senator Katrina Robinson (D-Memphis) questioned Dr. Davis as to how many women serve in leadership of his church, relating it to a woman’s right to choose. Dr. Davis responded that there were none, but that 60 to 65 percent of the 16,000 signatures obtained over three weeks stating support for the legislation, are women.
Jim Bopp, General Counsel to National Right To Life Committee and Tennessee Right To Life has been named one of the most influential lawyers in the country, said Chairman Bell in his introduction of the last witness for the day. Mr. Bopp said restoring legal protection for the unborn is his life’s work. With the National Right to Life Committee since 1978, one of his primary tasks is to develop a strategy for unborn life and overturning Roe v. Wade and second is to save unborn lives in the meantime.
Mr. Bopp testified that there are now 40 percent fewer abortions per year than when there were the most abortions. The credit for that, said Bopp, is the legislation that has been passed and gone into effect, though Roe v. Wade has not been overturned.
Mr. Bopp reviewed his experience to demonstrate his credibility about the Supreme Court, having filed his first brief regarding abortion in 1977. He has had 14 cases decided on the merits at the Supreme Court, winning nine of them.
Mr. Bopp made the point that this is not theory to him, standing before the Supreme Court trying to get a majority, and it is very difficult.
There is precedent, Mr. Bopp said, that cannot be avoided by a clever legal argument. If there were a clever legal argument, he would have known it.
“Nobody has said that we can confront the court. There is absolutely nothing you can do to make them do anything at all. They are in complete control, and there is no appeal except to God, and some of them don’t think they are answerable to God,” Mr. Bopp said.
According to Mr. Bopp, the Supreme Court refused every abortion-related case last year and added none for next year.
Pre-viability prohibitions, Mr. Bopp said, are “futile, because they’ll never go into effect.” With 100 percent certainty, Mr. Bopp said that there is no judge that would not find a pre-viability abortion ban constitutional due to precedent.
“Prohibitions give the Supreme Court a stark choice of either overturning Roe v. Wade or upholding Roe v. Wade, making them the least likely to accept,” said Mr. Bopp, and that heartbeat bill is the worst bill to overturn Roe v. Wade.
Mr. Bopp did say that he has a whole list of legislative measures that he has proposed that are ideal to overturn Roe v. Wade because they present choices to the Supreme Court, meaning that they will be more likely to accept them and they’re popular. He said that being popular is important to the court.
While the previous four witnesses’ testimony and question and answer period combined went for less than a two hours, Mr. Bopp’s testimony and follow-up question and answer period went for about an hour.
It got somewhat heated when Senator Robinson took issue with Mr. Bopp’s testimony that it is Democrats that favor aborting babies after they are born, saying that she doesn’t support that position and that it was disgusting for him to say that.
After the adjournment of the meeting a little after 4 p.m., as the sponsor of the bill, Senator Pody said he felt it was a “very, very good opportunity for some of the testimony to start and a lot of time for the interaction to ask back and forth.”
Senator Pody is looking forward to tomorrow, day two of the Summer Study, but thought on the first day, “We made some good headway.”
Senator Pody “absolutely” plans to push ahead with the legislation next year, expressing appreciation for the points made by Mr. Bopp as well as his experience.
“But, if this is going to be overturned,” continued Senator Pody regarding Roe v. Wade, “we’ve got to have something unique. If there was going to be an easy solution, we would have already done that.”
Senator Pody said of Mr. Bopp, “He said he’s been trying to do that for 40 years, without any success. We’ve got to do something different than what he’s already been doing.”
Regarding previous successes, Senator Pody said, “10,000 babies being aborted in Tennessee, I don’t call that success. If our definition of success is having a few less this year, that, to me, is unacceptable.”
Senator Pody thought that the difference in the Senate version of the bill versus the House bill was made clear today, but it will be made even more clear on Tuesday.
Regarding the witnesses scheduled to testify on Tuesday, Senator Pody said that some will be in favor of the bill, but more will be heavily opposed to it.
The livestream of day two of the Heartbeat Bill Summer Study can be watched here.
Laura Baigert is a senior reporter at The Tennessee Star.