Analysis Law and Policy

Tennessee GOP Withdraws Anti-Choice Bill Ahead of ‘Whole Woman’s Health’ Ruling

Mary Helen Montgomery

Carol Sanger, a professor of law at Columbia University and an expert in the proliferation of abortion restrictions, told Rewire that she was surprised by how the bill was handled in the Tennessee house. She has not seen lawmakers in other states proceed with such trepidation.

Lawmakers in Tennessee who oppose abortion are treading carefully in anticipation of the Supreme Court’s ruling on Whole Woman’s Health v. Hellerstedt, set to come out later this year, which could affect anti-choice legislation in the state.

State Rep. Rick Womick (R-Murfreesboro) proposed a bill in February that would require abortion providers to give patients the option to see an ultrasound before an abortion, if the doctor independently decides to perform an ultrasound. Originally, Womick’s bill would have required everyone seeking an abortion to have an ultrasound image shown to them. He argued that the amended version of the bill was designed to give women more choice in how their health care is provided.

“It’s giving a woman the right to choose and be a part of that process,” Womick said during the meeting of the House Health Subcommittee on February 16. “All we’re asking here is to give them the right to choose whether to see the ultrasound or not.”

Womick also said that while it is standard practice for a patient to receive an ultrasound prior to an abortion, this amendment seeks to ensure “the mother” is being “fully informed” of the procedure.

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But other lawmakers, who usually support bills that regulate abortion, sent a message loud and clear to Womick: Let’s wait and see what happens in the Supreme Court.

“Especially after what has happened with the death of Justice Scalia, there is no guarantee of where Tennessee’s current statutes are going to stand,” said Rep. Matthew Hill (R-Jonesborough), an anti-choice legislator, during the meeting.

Carol Sanger, a professor of law at Columbia University and an expert in the proliferation of abortion restrictions, told Rewire that she was surprised by how the bill was handled in the Tennessee house. She has not seen lawmakers in other states proceed with such trepidation.

“I haven’t seen [anti-choice] legislators being cautious,” Sanger said. Usually, she said, “they want to push those state laws as far as they can.”

This comes at a time when the House Criminal Justice Subcommittee in Tennessee is considering extending the state’s fetal assault law, which allows for the prosecution of women who take illegal narcotics during pregnancy. The law, which was enacted in 2014, is set to phase out on July 1. However, the subcommittee is discussing an amendment that would extend the law past its termination date. Under the law, any Tennessee woman whose pregnancy is complicated by the use of illegal drugs can be charged with aggravated assault, which carries a maximum penalty of 15 years in prison. While this legislation would not directly affect access to abortion care, it could force pregnant women to avoid seeking the care they need.

For more than a decade, Tennessee law prohibited certain regulations on abortion. But in 2014, voters gavelawmakers more power to regulate the procedure by approving Amendment 1. So, in 2015, Tennessee legislators were enthusiastic to get new regulatory laws on the books. They passed two new bills last year: a 48-hour waiting period for women seeking abortions and a requirement that abortion providers be regulated as ambulatory surgical care centers (ASCs).

But, after the measures passed, the operators of three abortion centers filed suit against those laws, as well as a 2012 law that requires hospital admitting privileges for physicians. As of January 2016, however, the lawsuit has been put on hold in federal court and the ASC measure is not being enforced, pending the decision that the Supreme Court will make in Whole Woman’s Health v. Hellerstedt.

In that case, the Court will decide on the constitutionality of a Texas law that would effectively shut down most of the state’s abortion clinics by burying the providers in regulations that are difficult or impossible to meet. The decision is likely to set a precedent that would affect Tennessee’s statutes, given that the Texas law’s provisions in question are similar to Tennessee’s ASC and admitting privileges requirements.

“We don’t know what the Supreme Court’s going to do,” said Bryan Terry (R-Murfreesboro) during the health subcommittee meeting. “We know that this [type of legislation] is being challenged.”

Now, anti-choice lawmakers appear to not want to push their luck, since it took so many years to make headway in regulating abortion in Tennessee. They told Womick in the health subcommittee meeting that his heart was in the right place, and it was difficult for them to oppose the bill, but that it wasn’t worth the risk to anti-choice measures being challenged.

“My issue is not so much what you’re trying to do,” Rep. Cameron Sexton (R-Crossville) said to Womick. “It’s the possibility of what it does to legislation that was passed by this general assembly last year. And how long that took to get done, and the historical achievement that it was done.”

After hearing the same message from other legislators at the hearing, Womick withdrew the bill from this year’s calendar. But, he said that after the Supreme Court ruling, he’ll bring the ultrasound bill back.

Rewire was unable to reach the office of Rep. Womick for comment by publication.

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