AG has concerns about abortion bills
Leader: Measures are constitutionally ‘suspect’
Two proposed abortion measures — a 20-week abortion ban and a measure that would prohibit most abortions past the point of fetal viability — are constitutionally “suspect” and “constitutionally infirm,” according to a new opinion by the Tennessee Attorney General.
It is the second time Attorney General Herbert Slatery III has weighed in on the constitutionality of abortion measures introduced in the legislature this year. Last month, an attorney general’s opinion similarly described as “constitutionally suspect” a bill that would have banned abortions after a fetal heartbeat was detected. The bill failed in the legislature a week later.
The 20-week abortion ban, proposed by Sen. Mae Beavers, R-Mt. Juliet and co-sponsored by more than a dozen Republican House members, would require any abortion after three months and before 20 weeks be performed in a licensed hospital by a licensed physician. And it would prohibit abortions after 20 weeks with the exception of when a physician certifies the abortion is necessary to preserve the life or health of the mother. The bill is technically still alive in Tennessee’s legislature but has not been scheduled for future committee hearings.
The 20-week ban runs afoul of the Supreme Court’s ruling that prohibits abortion bans before viability of the fetus.
“Under current, controlling U.S. Supreme Court precedent, a state cannot prohibit termination of a pregnancy before viability of the fetus,” the opinion said.
The 20-week ban does not contain an exception to the second trimester hospitalization requirement for medical necessities as required under the Supreme Court precedent, the opinion said.
A second abortion measure banning abortions after the point a fetus is viable (except in case’s of medical emergency) is “constitutionally infirm,” according to the opinion. That measure advanced in the Tennessee House last week.
The bill, introduced by Rep. Matthew Hill, R-Jonesborough and Sen. Joey Hensley, R-Howenwald, would subject physicians performing abortions past the point of viability to felony and misdemeanor charges.
A similar provision has already been shot down by the Sixth Circuit Court of Appeals, the opinion said.
Under the proposed bill, “the physician is subject to criminal sanctions for a decision that is by definition not based on guilty knowledge or even recklessness, but on the physician’s ‘good faith medical judgment.’”
That would “subject a physician to criminal liability even though he was acting on good faith in determining whether a medical emergency or necessity exists,” the attorney general opinion said.
The bill may also be unconstitutional because it does not include an exception for severe mental and emotional harm under the exception for medical emergencies, the opinion said.
Reach Anita Wadhwani at awadhwani@tennessean.com, 615-259-8092 or on Twitter @AnitaWadhwani.