Day Two of the Senate Judiciary Committee’s Summer Study of the Heartbeat Bill

 

NASHVILLE, Tennessee – The second day of the Senate Judiciary Committee’s Summer Study on SB1236, previously known as the Heartbeat Bill, was opened by Chairman Mike Bell (R-Riceville) at a somewhat unusually early start time of about 8 a.m.

Not all of the Committee members had arrived when Chairman Bell called the meeting to order, possibly due to traffic as Senator Janice Bowling (R-Tullahoma) explained was the case for the bill sponsor, Senator Mark Pody (R-Lebanon).

In addition to the Committee members, who all eventually were present for the hearing, Senator Paul Rose (R-Covington) joined for the second day and Senator Rusty Crowe (R-Johnson City) was also in attendance.

There were not as many observers in attendance on the second day. In fact, there appeared to be no one standing and little to no need for the overflow rooms used the day before.

Also in contrast to the first day, the majority of those observing were dressed in black, which several pro-life supporters thought to be ironic.

The majority of the 21 witnesses scheduled to testify on the second day, based on the organization they represent, presumed to be in opposition to the original Heartbeat Bill passed by the House as HB0077 and the amended Senate version SB1236.

Chairman Bell gave opening comments asking for decorum, or risk being removed by the Sargent at Arms.

Observing some attendees holding signs, which Chairman Bell said were allowed, he also said they needed to be held down in order to not block anyone’s view.

He also advised that all of the witnesses, with the exception of Paul Linton, special counsel to Tennessee Right To Life, agreed to limit their testimony to 10 minutes, excluding the question and answer period.

Senator Bowling passed out a folder to each of the Committee members that contained the testimony of Dr. David Stevens, Chief Executive Officer of Christian Medical and Dental Association, who was only able to testify on the first day of the Summer Study, but was scheduled for the second day. The folder also included a document from pro-life OB-GYNs speaking to scientific and medical parts of the bill, according to Senator Bowling.

Before the testimony got rolling, Senator Todd Gardenhire (R-Chattanooga) looked in the area where a few men with ball caps were sitting and directed, “Take your dadgum hats off and be courteous. You’re inside a room. Take your hat off.”

As he once again followed the agenda for the day, Chairman Bell learned that the first two witnesses, Walter Weber, American Center for Law and Justice or his designee, and David Forte of Cleveland-Marshall College of Law were not present.

Richard Mast, Senior Litigation Attorney, Liberty Counsel, a litigation non-profit dedicated to advancing religious freedom, the sanctity of life and freedom of speech issues by providing pro bono representation.

Liberty Counsel supports SB1236 as amended, believing that it is constitutional and defensible.

Mr. Mast addressed many of the opposing points given in the testimony regarding HB1236 on the first day, making his own compelling counterpoints including many reasons Roe “must fall.”

One shocking statistic Mr. Mast cited, that the U.S. is one of seven nations that allows abortion after 20 weeks, was discussed further with Senator Kerry Roberts (R-Springfield). Senator Roberts asked if it is a stretch to say the U.S. is an outlier compared to the rest of the world.

Mr. Mast responded that he doesn’t think it is a stretch when this is a country that is founded on life and liberty but allows a five-month-old baby to be killed.

SB1236 as amended, Mr. Mast believes, “is a good vehicle to overrule Roe.” He added that it is a clean slate with the conflict between the 9th Amendment and the 14th Amendment.

Mr. Mast said that Liberty Counsel would be pleased to assist in any legal defense of the legislation, free of charge and added a note of confidence in doing so because otherwise, the risks are too great.

Jeff Cobble, a constitutional attorney from Greeneville, Tennessee was not present, so Chairman Bell went on to the next witness.

Dr. Brent Boles, OB-GYN specialist based in Murfreesboro, who testified at the April 9 meeting of the Senate Judiciary Committee, when the Heartbeat Bill was sent to Summer Study. After reviewing his academic history and practice experience, Dr. Boles said he would repeat his previous testimony and answer any further questions, given the time that everyone had to think about it.

Dr. Boles stated on several occasions throughout his testimony that medical science is clear and unambiguous that life begins at conception. He said that peer-reviewed journal articles, interviews and testimony and listed numerous texts and materials used to teach medical students, all of which say that life begins at conception.

“It is the most relevant and most important question on the issue,” said Dr. Boles, as Chairman Bell nodded in agreement.

No matter what physician sees a pregnant woman, she is seen as two patients, according to Dr. Boles. “If it’s a patient, it’s common sense that it’s a person.”

Referring to the testimony the day prior by Mr. Jim Bopp, special counsel for National Right To Life Committee, Dr. Boles elaborated on the viability discussion, comparing a prognostic and diagnostic assessment.

Dr. Boles said that by the presence of the other side in the room, it is evident they fear that Roe can be overturned, otherwise they wouldn’t waste their time here. He read a statement from the CEO of Planned Parenthood of New England supporting his point, “Each and every day we see proof that abortion rights are on the line, and we cannot risk the threats to abortion access that we’re anticipating at the U.S. Supreme Court.”

Dr. Boles said that it’s time for pro-life advocates to work together to be as effective as possible.

Through the question and answer period with the Senate Committee members, Dr. Bowles revealed that the personhood argument has only been addressed in amicus briefs written by Personhood Alliance, but was never included in legislative language or intent of any other bill that made it to the Supreme Court.

Regarding the question from the day before by Senator Katrina Robinson (D-Memphis) regarding a case in Oklahoma, Dr. Bowles said it was not struck down by the Supreme Court, but the Oklahoma Supreme Court, with all nine justices having been appointed by a Democrat governor, denied cert.

Through discussion with Senator Bowling, Dr. Bowles said that they’ve heard the amended bill is unconstitutional on its face or suspect. He said the goal is to protect life and right now that is an unconstitutional position, because that which is unconstitutional is deemed constitutional when it comes to Roe, Casey and other illegitimate descendants of those decisions.

At that point, Senator Gardenhire interjected that he had a special request for witnesses that they are discussing SB1236 and to keep testimony limited to the bill and not politics. Senator Gardenhire went on to say that he has been involved with Republicans probably longer than anyone else in the room. He added that yesterday Trump was referenced, and said that that has no place in the room.

Paul Linton, Special Counsel for Tennessee Right To Life prepared a very detailed written analysis of the bill and a detailed summary of work done in the pro-life movement in the last 30 years, which he submitted to the Committee, with his testimony focusing on the more important parts of his analysis.

Mr. Linton said Tennessee Right To Life has been very active in promoting the pro-life movement, including the passage of Amendment 1, a 48-hour waiting period and informed consent, disposal of fetal remains, the post-viability ban and “trigger law,” which he drafted.

As Mr. Linton told The Tennessee Star, SB1236 will not be enacted, overrule Roe or save a single life “and does not merit your support,” in his opinion.

After delivering his testimony, Mr. Linton was challenged by Senator Bowling on the incremental approach and with the pushback from so many directions, she will believes the bill is unique and will support it when it gets before the committee.

She also called the trigger bill totally useless, if people stop trying to overturn Roe.

Senator Roberts said that the Supreme Court is political, and “it’s like watching a fantasy football team.” He added, “It’s very hard for us legislators. We don’t want to sit by and do nothing, but we don’t want to waste anybody’s time.

We don’t need to make a pro-life statement,” as Senator Roberts says he believes they are already the most pro-life legislature in the country, but need to do something effective.

Senator Roberts doesn’t want to win the battle, but the war. “The successful warrior knows that he’s won the war before he goes to battle,” quoting Sun Tzu from The Art of War. As demonstrated by the testimony provided on both sides of the issue thus far, Senator Roberts said, “Experts say this is a waste of time, or this is great.”

Senator Dawn White (R-Murfreesboro) said she co-sponsored and supported the trigger law, but asked how to get to where it would take effect.

Mr. Linton said there are 20 cases already in the pipeline, so “You could all adjourn for five years and they would advance.” He also thinks a direct challenge is not need and is unadvisable.

Senator White says it could be many years before SB1236 gets to the court with more justices and thought the process should start now with the different approach and in that time, there will be another justice.

Senator Crowe expressed appreciation for Mr. Linton’s testimony and the great forum. He questioned whether a split between the circuit courts, as Mr. Linton said is what is usually needed for the Supreme Court to hear a case, could be created with SB1236.

Mr. Linton responded no, because the earlier in pregnancy that abortion is prohibited, the greater the conflict with Roe, the harder it is to justify and normally the court does not take statutes that have been consistently struck down.

Heather Schumaker, National Women’s Law Center, is an attorney who opposes SB1236 as amended. Her opposition comes not only as a professional, but as a woman and mother who wants her daughter to have control over her own body. Ms. Shumaker made the point that, after eight speakers, there is one who can actually get pregnant.

Ms. Shumaker said that seven in 10 Americans don’t want to See Roe overturned. Despite that support, abortion is under unprecedented attack, by over 400 pieces of legislation that are “blatantly unconstitutional.”

Ms. Shumaker talked about how the banning of abortions in the state would place a financial burden on women, and that most women who have abortions are already mothers.

Senator Robinson said she was excited to be able to talk to a woman finally.

When Senator Robinson’s comment was met with applause, Chairman Bell gaveled and said he would clear the whole room if I can’t identify the person when an outburst like that happens.

After about a 10 minute break around the 10 o’clock hour, the Chairman Bell resumed with the agenda.

Hedy Weinberg, ACLU – TN called SB1236 “blatantly unconstitutional legislation” that would, in its original or amended version, disproportionately harm women in rural areas and with limited incomes who have limited health access, compounding their hardships.

Ms. Weinberg said, “Make no mistake, the ACLU will sue and we will win.”

She said that the fate of the bill is known, “A bridge to nowhere.” Ms. Weinberg called it a political football for legislators trying to be the most anti-abortion and ignoring the price constituents would eventually pay when the legislation is struck down.

Dr. Nikki Zite, Planned Parenthood of TN is a practicing OB-GYN in Tennessee who opposes SB1236 who said that laws have been passed without regard to scientific evidence. She said Mr. Bopp, in his testimony, questioned the Democratic platform and gave very distorted view of the bills he mentioned.

Dr. Zite said that health babies are not aborted and that situations were fabricated to invoke fear and went on to say, “In truth, these are typically complicated situations.”

“Seeing a family go through these situations is heartbreaking, but criminalizing it is simply evil,” said Dr. Zite.

Near the end of her testimony, Dr. Zite said that she has seen complications much more dangerous than abortions, to which Senator Bowling responded, “For the child, abortion is much more dangerous.”

Tracey George, Planned Parenthood of TN testified that what we know about the victims of rape and incest is that they don’t report. Victims don’t feel comfortable or safe in reporting, and there is shame that attaches to the event. As such, weeks pass before they seek attention or report to law enforcement.

Jay Hartley, Planned Parenthood of TN gave his perspective as a pastor, married for more than two decades with three children of his own. After 25 years of being a pastor, the number one thing he has learned is that life is messy and more complex than it looks from the outside. He related that learning to life and what it is like to have an unwanted pregnancy.

Mr. Hartley said that women are coerced, lied to, “We all know men can do horrible things to women.”

He said he finds himself thinking, “The women, family, pastor and doctor decide what their best option is, what their most faithful option is for all the lives involved.”

Mr. Hartley encouraged caring for families already in our midst, that they could use the support, energy and money put into this effort. He said he could only imagine if there was an end to writing these bills and paying lobbying fees and start uniting and teaching sex education. “After all, that’s the whole idea behind Planned Parenthood.”

He said that would have a “much greater effect on caring for the least of these.”

“I truly believe most of us basically want the same thing. If we truly want to care for our children and families, let’s drop the political agenda,” Mr. Hartley concluded.

When a few observers clapped, Chairman Bell asked the Sargent at Arms to escort a person from the back row and another he specified with their seat location and pointed out.

Dr. and former Ambassador Alan Keyes said he has no other credentials to be there but as an American who wants to rid this nation of the scourge of abortion. In his well-known style, Dr. Keyes talked about individuals, individual personhood and a principle of law that is extremely important – the presumption of innocence – and how it relates to viability.

After Dr. Keyes spoke for 10 minutes, Chairman Bell asked him to wrap up in the next one and a half or two minutes and then a question and answer period ensued.

Hal Rounds, a Fayette County resident, relayed some personal information to help explain when life begins.

Senator Gardenhire asked Mr. Rounds to speak only on the merits of the bill. When Mr. Rounds said he was doing that by talking about when a person exists, Senator Gardenhire instructed, “We’re here on the constitutionality of the bill.”

Once Mr. Rounds completed his question and answer period, Senator Jon Lundberg (R-Bristol) said that most had been there for the morning and some are starting to repeat themselves and asked witnesses to take that into consideration as presentations were prepared.

June Griffin, Tennessee Committee for the Bill of Rights, came as the head of the organization, a chaplain and a female preacher, to speak for the people of Tennessee who voted against abortion. Ms. Griffin then read Section 36 of The Tennessee Declaration of Rights, which she says is a vital part of  the Tennessee Constitution.

In this light, Ms. Griffin said there is no need for any other bill, as Tennesseans voted in 2014 for Amendment One.

She also read from Article 11, Section 16 of the Tennessee Declaration of Rights, which, she says, gives Tennesseans sovereignty over any government that supercedes what is in our state constitution.

With no questions for Ms. Griffin, the Committee adjourned for about an hour to resume at 1 p.m., according to Chairman Bell, to hear testimony from the final five witnesses.

Dr. Richard Orland, Beloved Heart, is licensed to practice medicine in Tennessee and 10 other states. He shared three stories about viability and the ban on abortion, one of which was his very personal story about his son who had a fetal anomaly.

In cases where this no chance for fetal viability outside the womb, Dr. Orland feels he is forced to violate of the Hippocratic oath – the sacred bond between physician and patient – by not being able to offer a choice to parents.

Dr. Orland said he hopes there is an understanding that there are many reasons surrounding the termination of pregnancy and in those times, no one feels the need to consult a politician.

During the question and answer, Senator Bowling thanked Dr. Orland for sharing his personal story and got emotional as she shared her own.

Nancy Corley, women’s Political Collaborative of Tennessee was born and raised in Tennessee and became a “pretty vocal advocate for equal rights for women” when she didn’t get a job because she couldn’t type fast enough. She identified herself as a Republican and said she voted for Barry Goldwater, and went on to list other Republicans she has relationships with and views being a pro-choice Republican as important.

Ms. Corley finds it is a conflict for Republicans to be for individual rights and liberties, but the position on anti-abortion the antithesis of that.

The protection of Roe v. Wade to privacy is the same principle, says Ms. Corley, that gives her the right not to have an abortion and that the decision to have an abortion ought to be between her, her husband, her doctor and her God, not between her and her politicians.

Rabbi Laurie Rice, Congregation Micah, relayed her personal experience with abortion and the differences in how Christianity and Judaism view abortion and whether the fetus has a soul.

Cherisse Scott, SisterReach is the founder and CEO of the organization, a mother and Christian. SisterReach was formed to offer reproductive autonomy to women through the framework of reproductive justice. Ms. Scott went into a rapid-paced series of grievances directed at the legislators.

She mentioned several times that she was on food stamps for three years as she started SisterReach.

At one point, Ms. Scott mentioned undocumented immigrants, denying hard working families a living wage, and targeting people because of their sexual orientation with vitriol and hate.

She also mentioned, “As if YOU are God and if you have a heaven or hell.”

Ms. Scott implied that the legislators made policies that lead to a need for more abortions and a permanent underclass, wielding political power in Jesus’ name, weaponizing the word of God by maintaining power and control.

When Ms. Scott mentioned colonialist and supremacist, Chairman Bell gaveled and called for the Sargent at Arms.

There appeared to be a dilemma as to how to proceed, as Ms. Scott didn’t appear to be willing to leave, even as several members of the Tennessee Highway Patrol entered the room. When the majority of the Senators left their chairs, Ms. Scott rotated her chair around and continued her diatribe toward the observers.

Attempts by Senator Bowling, who remained along with Senators Robinson and Sara Kyle (D-Memphis), to speak with Ms. Scott were unsuccessful. Ms. Scott did give Senator Bowling credit for staying in the room, although she wanted to send mothers to prison for NAS.

An attempt was also made by one of the observers to speak with Ms. Scott, also to no avail.

Ms. Scott called it unmitigated gall for people to walk out and said it was irresponsible and unfair for her to be stopped.

After several minutes, during which some observers were recording with their phones, Ms. Scott seemed to have said what she needed to say and departed with the black-clothed attendees cheering.

The Committee members returned to the hearing room for the testimony of the final witness.

Dr. Susan Dodd, Medical Director, Knoxville Reproductive Health Center. Dr. Dodd relayed her personal experience of an unplanned pregnancy at the age of 16, having an abortion and going on to get married and have children of her own.

At the conclusion of the witness testimony, Chairman Bell asked if any of the Senate Committee members wanted to make comments.

Senator Roberts said he had four: What is or isn’t constitutional depends on five men or women in black robes and it changes as the court changes; we’ve heard so much testimony about a small portion of abortions, but if they were limited to situations of medical need, we probably wouldn’t be having this conversation. But, there are 650,000 abortions in American, and the elephant in the room wasn’t addressed; the theology was all over the place. As much as I care about that, we are a nation of laws, not theology; Legislators. In one of the moments of levity Senator Roberts admitted about the notes he was reading, “I’m not sure what it means, but I’m sure it was brilliant.”

Overall, Senator Roberts thought it went about as well as could be expected.

As he stated at another point in the hearing, “It is possible for people whose ideology separates us to still be friends.”

Senator Roberts said he and Senator Kyle can be deeply divided and still respect someone as a person. He said he is not going to let go of his conservative principles, but said he could otherwise be impoverishing himself. Agreeing to disagree shouldn’t affect the rest of the relationship, and Senator Roberts said we need to learn to do more of that.

Senator Lundberg encouraged bill sponsor Senator Pody to work with David Fowler to look at the language of the bill again to make it better, like he said during his testimony on the first day.

Senator Kyle said she takes Senator Roberts’ comments to heart and told attendees her door is always open.

With no other comments from the Committee members, Chairman Bell yielded to Senator Pody, who told the Chairman he promised an open study, there is no doubt they are personal friends, and you stood by it.

Senator Pody recognized the Committee members for investing two days and thanked them for their time and effort.

Admitting he doesn’t have every answer, Senator Pody said he is open to suggestions from the Committee and David Fowler. He wants to hear ideas and get the best possible bill to go forward that people can be comfortable with.

While Liberty Counsel will defend the state at no cost, Senator Pody reiterated different testimonies that the estimated the damages if the case was lost at $250,000 to $500,000 and $1 million for three states. At an average of $300,000, that is four to five cents per Tennessean, said Senator Pody.

To the question of why the courts would hear this bill, Senator Pody said that there have been 130 new judges appointed in the past two and a half years, one of whom was from the Senate chamber.

Senator Pody said that, at one point, people believed the world is flat, people of color didn’t have the same rights and women didn’t have the same rights.

“As we grow as a society, we want to be sure everybody is protected. If there’s life in the womb and that life is a human, that life deserves protection,” concluded Senator Pody.

Chairman Bell said he had a short statement, although he had prepared a long written statement. Appearing to be emotional, Chairman Bell, closed the Summer Study.

“There are seven members of this Committee that are committed to seeing an end to abortion in Tennessee. We will continue to look at SB1236 to determine if this bill or if there is another bill or idea to put forward to reach the goal to end abortion in our state.”

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Laura Baigert is a senior reporter at The Tennessee Star.