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A Near-Total Abortion Ban Isn’t Enough for Some Tennessee Republicans

Rachel Wells

Anti-choice lawmakers are considering a bill to redefine fetal viability and end legal abortion in Tennessee.

The Tennessee Senate judiciary committee convened this week for a summer study session on the so-called heartbeat bill, a near-total ban on abortion, but anti-choice lawmakers and witnesses used the hearing to call for more extreme legislation that would ban abortion completely and redefine fetal viability to begin at conception.

The two-day hearing came after Republicans’ near-total abortion ban stalled in the state senate this spring, even as a flurry of other states with GOP-held legislatures passed similar bills ending legal abortion around six weeks into pregnancy, before many people know they’re pregnant. The bills are known as “heartbeat bans,” though the term is a misnomer: Six weeks into pregnancy, there is no fetus and no heart, only a “fetal pole,” a thick area alongside the yolk sac that extends from one end of an embryo to the other, in which electrical activity can be measured.

The nine state senators on the Tennessee committee, which includes two Democrats, heard testimony from anti-choice witnesses on Monday and both anti-choice and pro-choice witnesses on Tuesday. Monday’s hearing began at 1 p.m., but the room was packed before 8 a.m., mostly by anti-choice supporters bussed in by legislators and anti-abortion organizations. Planned Parenthood supporters filled the remaining seats and overwhelmed the hallways and secondary viewing rooms.

Five expert witnesses—all men—testified Monday about an amendment that intends to turn SB 1236’s “heartbeat” ban into a “conception” bill by redefining fetal viability. Under the standard set by Roe v. Wade, fetal viability generally occurs between 24 and 28 weeks’ gestation and states cannot ban abortion before viability. Anti-choice lawmakers have tried for years to replace viability with junk science, but the amended bill under discussion in the Tennessee Senate would go farther by establishing conception as the point when a fetus becomes viable.

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The amended version of the bill would not only make abortion illegal in all cases in Tennessee—it could also affect how miscarriages are handled, limit birth control, and supersede how a pregnant person and their doctor make medical decisions. This week’s senate study session did not include any voting, and so the amended anti-choice legislation won’t be taken up until the Tennessee legislature convenes again in 2020.

After being introduced in the Monday hearing by committee chair state Sen. Mike Bell (R-Riceville) as his “good friend and buddy,” David Fowler, founder of the Family Action Council of Tennessee, made his intentions clear: “This is not a heartbeat bill. It’s time to cut Roe down.”

“No one in Tennessee wants Republican politicians in control of every birth. Women have the right to choose when and if they want to start a family. This unconstitutional amendment is further proof that Republican politicians are completely out of touch with Tennesseans who broadly agree that abortions should be kept safe and legal,” state Rep. Gloria Johnson (D-Knoxville) told Rewire.News. “Restricting access to birth control and prosecuting pharmacists for selling standard IUDs and hormonal contraception is a step toward a dystopian society where women are subjugated, second class citizens. This Republican policy is not just a bad idea—it’s dangerous.”

Adam Macleod, a law professor at Faulkner University in Alabama, testified Monday in support of the unusual constitutional strategy behind the amended anti-choice bill: using the “common law” rights of the Ninth Amendment as a constitutional basis to overturn Roe v. Wade. Macleod encouraged lawmakers to look beyond the Supreme Court’s 14th Amendment jurisprudence.

Nate Kellum, president and chief counsel of the Center For Religious Expression, testified that medical advancements have made viability a moving target. He said this bill could defeat Roe by attacking the definition of viability.

Democratic lawmakers called this strategy outrageous. “Without question, the newly amended bill is unconstitutional. Roe v. Wade clearly defines when states can step in and what the term viability means,” Rep. Bob Freeman (D-Nashville) told Rewire.News. “The intent to write a new definition is laughable and the blatant disregard for science is appalling. This is classic political posturing and it’s a waste of time and money.”

Not all anti-choice testimony Monday was in support of the bill. Jim Bopp, an attorney with National Right to Life Committee, pushed back on the legislation and said passing it in its current state could lead to defeat and a reaffirmation of Roe v. Wade. Tennessee Right to Life made similar arguments during the 2019 legislative session and was partially responsible for the original bill’s failure.

While Bopp dismissed the senate bill as constitutionally unsound, he said the Democratic platform supports killing babies in the nursery—a false claim that state Sen. Katrina Robinson (D-Memphis) called out as a lie during the committee hearing.

Nine of the 26 witnesses who testified during the two-day session were women. Bell interrupted one pro-choice witness, Cherisse Scott, founder and CEO of SisterReach, during her testimony Tuesday. Bell called for recess after Scott said, “You manipulated scripture to align with your colonial and supremacist ideology instead of showing mercy and using the political power of your party to liberate each of us.”

Randy Davis, executive director of the Tennessee Baptist Mission Board, called abortion a “violent method of birth control” in his Monday testimony. He decried the New York Abortion Access Fund, which provides financial assistance to people unable to pay for abortion care, calling it “the death knell for thousands of children” 

When the Monday hearing was over, Planned Parenthood leaders gathered their supporters for a debrief. Francie Hunt, executive director of Tennessee Advocates for Planned Parenthood, thanked the crowd for coming and encouraged a unifying sigh of relief. Robinson and state Sen. Sara Kyle (D-Memphis), the two Democrats on the judiciary committee, thanked supporters before taking questions. “We couldn’t do it without you all, without your calls, without your texts and we’re going to continue tomorrow. We’re going to fight. It’s not over yet,” Kyle told supporters. 

“You all witnessed today what we’re up against,” Robinson told the room. “How can you force a woman to give birth to a child she cannot care for or be able to survive in the way it should? How can you do that?”

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