On Friday, the Tennessee legislature passed a bill banning abortion after a fetal heartbeat can be detected—generally after six weeks of gestation.
The bill was passed as part of larger budget negotiations held between Tennessee’s two legislative chambers. Its passage came as a shock to many pro-choice advocates, as the bill was not on the legislative agenda. The bill is expected to be signed into law by Republican Gov. Bill Lee.
The bill classifies as felony all abortions after six weeks—meaning providers performing abortions after this could face up to 15 years in jail and a $10,000 fine.
The bill includes a severability clause, meaning that if the six-week ban is struck down in court, new legislation will be automatically enacted banning abortions after eight weeks, as well as 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks, if each of the aforementioned bans is struck down. The bill provides no exceptions in the case of rape or incest—although it does include an exception if the life of the woman is in danger.
Additionally, the bill bans all abortions performed on the basis of sex, race or because the fetus has been diagnosed with Down Syndrome. All minors in the custody of the Department of Children’s services are also banned from having abortions. Doctors are required to complete a number of tasks before a woman can have an abortion, such as forcing the woman to hear the fetal heartbeat and see images of the fetus generated from a legally required ultrasound. All abortion clinics must post a sign in their waiting room informing patients that a chemically-induced abortion may be able to be reversed—although there is no medical evidence supporting this claim.
Part of a Larger Attack on Roe v. Wade
Multiple lawmakers in Tennessee have made it clear one of the goals of the bill is to bring a court case to the Supreme Court in the hopes of overturning Roe v. Wade.
Tennessee Senator Mike Bell (R.-Riceville), chairman of the Senate Judiciary Committee, commented, “We know something on its face is going to have to be unconstitutional to challenge Roe … that’s part of it. But we want to give our bill the best chance possible to get there.”
He went on to state that the bill will create “multiple shots” for Tennessee to bring the case to the Supreme Court.
“This measure is a panoply of the cruelest restrictions designed to push abortion care out of reach and end the right to abortion once and for all,” said Kristin Ford, national communications director at NARAL Pro-Choice America. “It is an affront to the values of the 7 in 10 Americans who believe everyone should be able to make their own decisions about pregnancy, without politicians meddling to impose an ideological agenda.”
Abortion Restrictions in Tennessee
The passage of this bill continues Tennessee’s history of enacting restrictions on abortions. The state already mandates a 48-hour waiting period before an abortion can take place, as well as prevents minors from having abortions without parental consent.
In 2014, Tennessee amended its constitution to state that nothing in it guarantees a woman’s right to an abortion.
In 2019, Tennessee introduced a bill that would automatically outlaw abortion if Roe v. Wade is overturned.
Bills that ban and restrict abortion access disproportionately affect poor women and women of color—since already, the majority of those who have abortions are people of color.
As Renee Bracey Sherman wrote for Vox last year, in response to an identical bill out of Alabama in March 2019, which attempted to ban abortions after six weeks:
We already know who will be harmed first: The same communities already being jailed for living in our nation without the right immigration papers, the pregnant asylum seekers being shackled by U.S. Marshals, the black and brown bodies scrutinized by police in our neighborhoods, and the same communities chastised by politicians for having too many children.
“This legislation is not only unconstitutional, but racist and classist,” said Cherisse Scott—CEO of SisterReach, a Tennessee-based reproductive justice group—in a statement. “This legislation was decided by a majority white, male, evangelical legislature that double talks about life, while they unapologetically sanction the killing and destruction of vulnerable families all over this state.
“The fact that this legislation was passed in the third watch of night, not only demonstrates the evil and treacherous culture of legislative violence Tennessee conservatives are known for, but the disregard for not creating opportunities for the most vulnerable to speak about the healthcare access we require as Black women and other vulnerable people in this state. Abortion access is essential healthcare to Black women, as we are among the most unprotected and neglected people in this state.”
Challenges in Court
The ACLU responded to the passage of the bill, stating the bill “effectively outlaws abortion in the state of Tennessee.”
Hedy Weinberg, executive director of the Tennessee chapter of the ACLU, called the bill “dangerous” and “flatly unconstitutional.” She charged lawmakers with using the bill “in a game of political maneuvering to pass the state budget—pushing it through without regard for the actual Tennesseans who will be denied access to the care they need, including abortion.” She went on to declare that the ACLU would sue the state in response.
“Tennessee legislators jammed through this extreme bill under cover of darkness, making their priorities crystal-clear: control and punish women and families,” said Ford, “rather than help them thrive at a time when our nation is reckoning with pernicious racial injustice and a crippling pandemic.”