Mcnally voices concern about fetal heartbeat bill
The Tennessee state Senate will likely delay taking any action on a controversial fetal heartbeat bill that, upon becoming law, could get struck down in court.
Instead, Republicans in the Senate prefer to back an alternative abortion restriction bill that would automatically ban the procedure if the U.S. Supreme Court overturns Roe v. Wade, its 1973 decision that legalized abortion, Lt. Gov. Randy Mcnally said.
“We’re trying to construct a law that won’t get us into court on the losing side,” Mcnally, R-oak Ridge, told reporters on Thursday.
The heartbeat bill passed in the House but SB 1236, the Senate’s version, has not yet been taken up in committee.
Mcnally, who has concerns about the legality of the heartbeat bill, said Senate Republicans plan to hold off on examining amendments to that legislation until the trigger ban, know as the “Human Life Protection Act,” is passed in their chamber.
The heartbeat bill has caused a rift among conservatives who are in favor of increased abortion restrictions. Tennessee Right to Life is among the anti-abortion groups that have opposed the heartbeat bill due to the potential for litigation, instead supporting the trigger ban legislation.
While Mcnally said it was possible that an amendment could be added to the trigger ban to permit abortions in the case of rape or incest, he declined to say whether he would support such an amendment.
Neither the House nor the Senate have taken up the trigger ban in committee.
Mcnally questions whether heartbeat indicates viable fetus
If the Senate does move on to the heartbeat bill, Mcnally said, his chamber would need to “see if we can change it in a way that it meets the test of the courts.”
The legislation would make it illegal for a doctor to perform an abortion once a fetal heartbeat is detected, which can be as early as six weeks into pregnancy.
“Just because there is a heartbeat detected doesn’t mean that you have a viable fetus,” Mcnally said.
“You can have a real low heart rate and you can have a heart rate that you can tell that something is wrong with the fetus,” he said. “I think we’d be looking at things like that, that it would be a medical determination that at that point there is a viable fetus.”
Other states stuck with large legal bills; lawsuit possible
Both the American Civil Liberties Union of Tennessee and Planned Parenthood of Tennessee and North Mississippi have warned of their intentions to file lawsuits if the heartbeat bill becomes law.
“That is a big concern,” Mcnally said. “We don’t want to put money in their pockets.”
Shortly after a similar bill was signed into law in Kentucky earlier this month, abortion rights groups challenged it and a federal judge temporarily blocked the measure from taking effect.
A federal judge in January also struck down an Iowa heartbeat bill passed last year.
Other states that have attempted to defend similar abortion bans and have been hit with hundreds of thousands of dollars in legal costs.
When the 8th Circuit Court of Appeals ruled North Dakota’s 2013 fetal heartbeat bill unconstitutional, for example, the state spent nearly $500,000 in legal fees — half of which went to lawyers representing an abortion facility.
The Tennessee attorney general in 2017 released an opinion calling the restriction “constitutionally suspect,” prompting a similar bill that had been filed at the time to fail a week later.
Gov. Bill Lee has said he supports the fetal heartbeat bill, and House Republican leaders have indicated they’re willing to fund any resulting litigation if the law is challenged.
Reach Natalie Allison at nallison@tennessean. com. Follow her on Twitter at @natalie_allison.