Federal Court’ Opinion on Tennessee Abortion Law Painful to Read
Jul 30, 2020 by David Fowler
Everybody knew the federal district court would prevent the state from enforcing the abortion law that the legislature passed on the last day of the legislative session. District courts adhere closely to U.S. Supreme Court precedent. However, it seems to me the judge’s opinion showed why the pro-life community might as well have directly challenged Roe v. Wade and Planned Parenthood v. Casey as try to dance around them.
The primary focus of most pro-lifers during session was Section 216 of the law, which had multiple subsections. Each of the following quotes are from the Court’s opinion.
The first subsection in 216 provides that “a person who performs or induces an abortion upon a pregnant woman whose unborn child has a fetal heartbeat commits a Class C felony.”
The next subsections made it a crime for a doctor to perform an abortion “when the unborn child is six weeks gestational age or older” and “at various intervals from eight weeks through 24 weeks gestational age.”
Each subsection was subject to a “severability clause,” meaning that if the fetal heartbeat subsection was found to be unconstitutional, then the law would make the provision of an abortion at six weeks a crime and so on and so forth at various gestational stages from eight weeks to 24 weeks.
This severability provision was alleged genius of the bill. I was told it would force the court to look at the facts of fetal development at each stage and then decide the constitutionality of criminalizing abortion at any one of the 10 gestational stages.
The Court correctly stated what the United States Supreme Court has held:
Then, the Court addressed the issue of whether gestational age can be a constitutionally-valid basis for criminalizing abortion:
The Court then cited the fact that other federal circuit courts had held pre-viability abortion bans unconstitutional.
In the face of the precedent from other circuit courts, the state “point[ed] out that the Sixth Circuit has not yet addressed the issue.” The Court responded to that argument this way:
Then, for good measure, the Court added:
In sum: The absence of a ruling on a bill like this by the “lowly” Sixth Circuit doesn’t change what the Supreme Court has said, especially when that Court has already said “gestational age alone” cannot be the basis for criminalizing abortion.
The state’s next argument is not one I have ever heard of or read about. Here’s the Court’s summary:
The Court understood this to mean that the law “would not prohibit an abortion before viability if the patient has announced, perhaps before she learns she is pregnant, that she has made the decision to terminate her pregnancy.” (emphasis added)
I bet Planned Parenthood got a chuckle out of that statement by the Court. Under the state’s argument every woman who unexpectedly gets pregnant just needs to tell someone who will later be a witness for her, “I think I want to have an abortion.” So long as she does that, she can have it prior to viability and, if she happens to change her mind a couple of months later, well, I guess that’s what Planned Parenthood would call a woman’s prerogative.
In fact, I’d be surprised if an abortionist didn’t ask the woman leading questions like, “Unless you decided before X point in time to have this abortion, then it would be a crime for me to do it. So, did you decide that’s what you wanted to do prior to X point in time.” Under that scenario, how many abortions are really going to be prevented?
As one of my law professor friends said in an email to me two weeks ago, after he read the state’s brief using this argument: “It’s clever. . . . But I fear that it is too clever and will be viewed as such.”
His choice of the word “clever” was pretty prescient! The Court said: “The Court is not persuaded that the plain language of the statute, or the legislative findings, support such a creative interpretation.” (emphasis added)
Then the Court dropped the next hammer: “The plain language of Section 216 prohibits an abortion provider from performing an abortion where the unborn child is six weeks gestational age (unless there is no fetal heartbeat) through 24 weeks gestational age.”
In other words, when a woman cannot have the abortion performed because the doctor will be committing a crime, the state, in the words of Casey, “has place[d] a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (emphasis added) Very clever, indeed, but nothing in that Supreme Court quote is about when the decision to have an abortion is made, only when it is sought.
But, wait, what about the severability clauses? What did the Court think about them?
The Court didn’t think anything about them. The Court didn’t even mention them in its analysis.
And why would it? What was the point of looking at any facts about fetal development when the state simply cannot prohibit abortion prior to viability and can’t base a prohibition on gestational age anyway? None that I can see.
I testified that the severability clauses would not work, because the Supreme Court ruled in 2016 that it would not consider severability clauses in the abortion context. That was one of the reasons I thought the state would have been better off prohibiting abortion once life is detected.
In that case, the constitutional argument is straightforward: It is within the state’s power, consistent with the Ninth Amendment, to regulate the medical profession when the right to life of any natural person, even if in the womb, is being taken by a third party (a physician) without due process of law.
I don’t believe clever and creative arguments that don’t even try to explain why Roe and Casey are “bad law” will give the Court of Appeals or the U.S. Supreme Court reason to reconsider or even partially retreat from them. Sadly, I think the district court judge explained why. There’s just nothing new for them to think about.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
Prohibiting Abortion from a Heartbeat Up to 24 Weeks Gestation
The primary focus of most pro-lifers during session was Section 216 of the law, which had multiple subsections. Each of the following quotes are from the Court’s opinion.
The first subsection in 216 provides that “a person who performs or induces an abortion upon a pregnant woman whose unborn child has a fetal heartbeat commits a Class C felony.”
The next subsections made it a crime for a doctor to perform an abortion “when the unborn child is six weeks gestational age or older” and “at various intervals from eight weeks through 24 weeks gestational age.”
Each subsection was subject to a “severability clause,” meaning that if the fetal heartbeat subsection was found to be unconstitutional, then the law would make the provision of an abortion at six weeks a crime and so on and so forth at various gestational stages from eight weeks to 24 weeks.
This severability provision was alleged genius of the bill. I was told it would force the court to look at the facts of fetal development at each stage and then decide the constitutionality of criminalizing abortion at any one of the 10 gestational stages.
The Court States What the U.S. Supreme Court Has Held
The Court correctly stated what the United States Supreme Court has held:
The Casey Court [held] "a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability . . ."
The [Supreme] Court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Casey, 505 U.S. at 870.
The [Supreme] Court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Casey, 505 U.S. at 870.
Then, the Court addressed the issue of whether gestational age can be a constitutionally-valid basis for criminalizing abortion:
Because viability may differ with each pregnancy, the Court has held that “neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus.” Colautti v. Franklin, 439 U.S. 379, 388–89, 99 S. Ct. 675, 682, 58 L. Ed. 2d 596 (1979). (emphasis added)
The Court then cited the fact that other federal circuit courts had held pre-viability abortion bans unconstitutional.
The Court Blows a Hole in the State’s First Argument
In the face of the precedent from other circuit courts, the state “point[ed] out that the Sixth Circuit has not yet addressed the issue.” The Court responded to that argument this way:
Although that is true, application of Casey and other Supreme Court authority lead this Court to the same conclusion reached by other appellate courts. As Casey has established, a state may not prohibit abortions before viability. (emphasis added)
Then, for good measure, the Court added:
As discussed above, the Supreme Court has also specifically rejected the idea that a legislature or court may define viability by gestational age alone. Section 216 does not comply with this authority because it prohibits abortions based solely on gestational age rather than viability. (emphasis added)
In sum: The absence of a ruling on a bill like this by the “lowly” Sixth Circuit doesn’t change what the Supreme Court has said, especially when that Court has already said “gestational age alone” cannot be the basis for criminalizing abortion.
The Court Blows Through the State’s Second Argument
The state’s next argument is not one I have ever heard of or read about. Here’s the Court’s summary:
Defendants [the government officials] argue the provisions of Section 216 do not prohibit pre-viability abortions; they merely regulate the timing of the decision to have an abortion. According to Defendants, “[t]he Bill’s gestational-age provisions do not ‘prohibit’ a woman from deciding whether to seek a pre-viability abortion; they merely regulate when she must make that decision.” (Doc. No. 27, at 19) (emphasis in the original)
In other words, the state argued to the Court that “as long as a woman makes the decision to have an abortion before a fetal heartbeat is heard, or before the unborn child is six weeks old, the abortion provider would not be prohibited from performing the abortion up to the time a fetus is viable." The Court understood this to mean that the law “would not prohibit an abortion before viability if the patient has announced, perhaps before she learns she is pregnant, that she has made the decision to terminate her pregnancy.” (emphasis added)
I bet Planned Parenthood got a chuckle out of that statement by the Court. Under the state’s argument every woman who unexpectedly gets pregnant just needs to tell someone who will later be a witness for her, “I think I want to have an abortion.” So long as she does that, she can have it prior to viability and, if she happens to change her mind a couple of months later, well, I guess that’s what Planned Parenthood would call a woman’s prerogative.
In fact, I’d be surprised if an abortionist didn’t ask the woman leading questions like, “Unless you decided before X point in time to have this abortion, then it would be a crime for me to do it. So, did you decide that’s what you wanted to do prior to X point in time.” Under that scenario, how many abortions are really going to be prevented?
As one of my law professor friends said in an email to me two weeks ago, after he read the state’s brief using this argument: “It’s clever. . . . But I fear that it is too clever and will be viewed as such.”
His choice of the word “clever” was pretty prescient! The Court said: “The Court is not persuaded that the plain language of the statute, or the legislative findings, support such a creative interpretation.” (emphasis added)
Then the Court dropped the next hammer: “The plain language of Section 216 prohibits an abortion provider from performing an abortion where the unborn child is six weeks gestational age (unless there is no fetal heartbeat) through 24 weeks gestational age.”
In other words, when a woman cannot have the abortion performed because the doctor will be committing a crime, the state, in the words of Casey, “has place[d] a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (emphasis added) Very clever, indeed, but nothing in that Supreme Court quote is about when the decision to have an abortion is made, only when it is sought.
The Court Blows Right Past the Severability Clauses
But, wait, what about the severability clauses? What did the Court think about them?
The Court didn’t think anything about them. The Court didn’t even mention them in its analysis.
And why would it? What was the point of looking at any facts about fetal development when the state simply cannot prohibit abortion prior to viability and can’t base a prohibition on gestational age anyway? None that I can see.
Conclusion
I testified that the severability clauses would not work, because the Supreme Court ruled in 2016 that it would not consider severability clauses in the abortion context. That was one of the reasons I thought the state would have been better off prohibiting abortion once life is detected.
In that case, the constitutional argument is straightforward: It is within the state’s power, consistent with the Ninth Amendment, to regulate the medical profession when the right to life of any natural person, even if in the womb, is being taken by a third party (a physician) without due process of law.
I don’t believe clever and creative arguments that don’t even try to explain why Roe and Casey are “bad law” will give the Court of Appeals or the U.S. Supreme Court reason to reconsider or even partially retreat from them. Sadly, I think the district court judge explained why. There’s just nothing new for them to think about.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
