NASHVILLE, August 19, 2019 (LifeSiteNews) – As Tennessee lawmakers debate their latest proposal to end abortion in the state, America’s most prominent “pro-life” lobbying group is condemning the measure as “irrational” and “foolish.”
Like other states, Tennessee has been considering legislation to ban abortion once a fetal heartbeat can be detected. Earlier this summer it was amended into an even bolder proposal: banning virtually all abortions by defining “viability” to mean “that a male human sperm has penetrated the zona pellucida of the female ovum, which includes, but is not limited to, serial human chorionic gonadotropin (HCG) determinations or the detection of a heartbeat in an unborn child.”
Starting effectively at conception, the bill would make committing an abortion a Class C felony and revoke a violator’s medical license in all cases except to prevent the “death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”
However, during packed legislative hearings earlier this month, National Right to Life Committee (NRLC) general counsel James Bopp testified against the bill, the Nashville Tennessean and Nashville Public Radio report.
“It’s not a matter of whether these judges are pro-life,” Bopp argued. “It’s the reality that they have an obligation to follow precedent. And there’s simply no question that pre-viability prohibitions are unconstitutional […] We have precedent we cannot avoid with a clever legal argument.”
He admonished the bill’s viability provision as “irrational” language that “makes us look foolish. And I do not want to look foolish.”
Instead, Bopp argued the way to end abortion was to “build a willing court” by re-electing President Donald Trump and returning a Republican majority to the Senate next year, the Tennessee Tribune reports. Instead, Tennessee Right to Life (TRTL) supports trigger legislation that wouldn’t take effect unless and until some other legal battle eventually overturns Roe v. Wade.
Faulkner University law professor Adam MacLeod disagreed with Bopp, telling lawmakers the bill could be supported under the Ninth Amendment to the U.S. Constitution, which guarantees rights not spelled out in the constitution yet recognized in the American common-law tradition, as a preborn right to life was long before Roe.
Republican state Sen. Janice Bowling argued that waiting for the Supreme Court to overturn Roe wasn’t good enough, because under the “current approach we are taking, a lot of infants are going to die and a lot of people are getting impatient.”
One potential pitfall of placing pro-life hopes with future justices is that most national pro-life groups tend to endorse Republican judicial nominees without confirming how they’d rule on Roe, yielding a current Supreme Court where Justice Clarence Thomas is the only confirmed anti-Roe vote (though most pro-lifers are confident that Justice Samuel Alito would rule against Roe as well). The other three right-leaning justices, particularly John Roberts and Brett Kavanaugh, have given mixed signals on their likelihood of overturning Roe.
Without specifically naming Bopp, Family Action Council of Tennessee (FACT) president David Fowler wrote that it’s “foolish” to make “prideful assertions about what the rule-of-law-composition of the Court will be at the time any law enacted now finally reaches that Court,” and noted that “judicial vote prognostications” throughout the history of the abortion debate have often been wrong.
“There is a rule of law conflict, because in every area of the law—criminal, tort, and property—the state has the authority to recognize the right-bearing capacity of unborn persons, just not when it comes to one thing, abortion,” he argued. “That arbitrary distinction as to when a known living human being is a person is an offense to the rule of law. If a Republican legislature isn’t willing to make the Court decide this issue on the basis of the rule of law because it doesn’t think the Court cares about the rule of law either, then heaven help us; we are lawless.”
NRLC has faced criticism in the past for allegedly putting the priorities of the Republican establishment ahead of the pro-life cause, from opposing federal heartbeat legislation and putting its weight behind policies unrelated to abortion, to pressuring lawmakers and affiliates to support rape and incest exceptions, and even pro-abortion Republicans such as Sen. Lisa Murkowski (R-AK).
The Tennessee bill faces an uphill battle to passage, as a spokesman for Republican Lt. Gov. Randy McNally says he still has “reservations” the bill’s likelihood of provoking a losing legal battle.