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Tennessee's Radical Plan to Ban Abortion Is a Warning Sign for the Country

State lawmakers are taking a cue from Alabama's heavily restrictive abortion ban with legislation that would define life at conception.

by Marie Solis
Aug 16 2019, 5:17pm

Mark Humphrey / Associated Press

After postponing plans to advance a six-week abortion ban earlier this year, the Tennessee state legislature met this week in a summer study session to discuss a near-total ban on abortion that would define life at conception and redefine fetal viability as beginning at the moment of a positive pregnancy test.

The proposal for a total ban takes the form of an amendment to Senate Bill 1236, which is itself a six-week abortion ban in the mold of the so-called “heartbeat” legislation eight states passed between March and June. The amendment, proposed by Tennessee State Senator Mark Pody, who filed SB 1236 in its original form, would go even further to make abortion illegal from the moment of conception—much like the total abortion ban Alabama passed in May that lawmakers admitted was designed to challenge Roe v. Wade. Similar to Alabama’s law, Pody’s legislation would also make performing an abortion a felony. (Pody’s office did not return VICE’s request for comment.)

Republican lawmakers and state officials in Tennessee have been hesitant to follow in the footsteps of fellow conservative states passing extreme abortion legislation. When Pody’s six-week ban was brought to a vote in April, several Republican legislators voted no, heeding warnings from State Senate Speaker Randy McNally, who argued that the blatantly unconstitutional legislation was doomed for a lengthy court battle and therefore a waste of taxpayer dollars. As a consolation, Tennessee passed a “trigger law” instead, which would automatically ban abortion if the Supreme Court overturned Roe v. Wade. Legislators also agreed to table Pody’s bill, and revisit it over the summer.

Now that Tennessee legislators have reconvened, they’re considering abortion legislation far more extreme than what was under consideration before. (State lawmakers won’t vote on Pody’s legislation until the new legislative session begins in January.) By passing over a six-week ban in favor of a total ban on the procedure, the lawmakers pushing for Pody’s amendment have raised questions about what Americans should expect to see from conservative states now that Alabama has demonstrated that it is possible to pass a law making abortion illegal in nearly every case.

“I definitely think there may be a copy-cat effect with Alabama,” said Ushma Upadhyay, an associate professor at Advancing New Standards in Reproductive Health, a program at the University of California, San Francisco. “They see the impact this law had in Alabama, where it sparked panic and fear because many people thought it went into effect immediately.”

Elizabeth Nash, the senior state issues manager at Guttmacher Institute, suggested that there may be some one-upmanship at play: Lawmakers in deep-red states may be wondering why they aren’t on the forefront of the battle to overturn Roe.

“Perhaps these state legislatures feel like they’ve been left behind in some way—it almost has a Keeping Up with the Joneses feel to it,” Nash said. “So [Tennessee lawmakers] have come up with this twist to what was previously a six-week abortion ban where they’re trying to redefine viability. It’s not likely to get them very far.”

As Nash alludes, nearly every state that passed an abortion ban earlier this year has already been met with a court challenge, including Alabama, which is facing a lawsuit from the American Civil Liberties and Planned Parenthood.

And for that reason, there is still some hesitation among the Tennessee Republican caucus. McNally remains opposed to legislation banning abortion at six weeks, and a spokesperson from his office told the Tennessean that Pody’s new amendment for a total abortion ban doesn’t “assuage his concerns” about facing costly litigation. (McNally’s office did not respond to VICE’s request for comment.)

But at this week's hearings, anti-choice activists argued that the bill had the legal chops to make it to the Supreme Court and roll back federal abortion rights. “This is not a heartbeat bill,” said David Fowler, the founder of the Family Action Council of Tennessee. “It’s time to cut Roe down.”

These debates within the Tennessee state legislature reflect emerging fissures within the larger movement of anti-abortion lawmakers and activists, who, though both oriented toward the same goal—banning abortion—have different philosophies of how best to achieve it. In Tennessee, there’s still no consensus on which tack is best.

Just weeks ago, Nash believed the country had seen an end to six-week and total abortion bans—after all, there are already several of them in the pipeline, slowly crawling toward the Supreme Court. Why would a state feel the need to spend millions litigating its own law, when other states had it taken care of? But now, she’s doing some reevaluation.

“Right now, we’re seeing some regrouping by abortion opponents to continue to push the envelope on abortion bans,” she said. “We may be seeing another set of states take on these early abortion bans in 2020.”

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