On July 1, the state’s Family Rights and Responsibilities Act—aimed at bolstering parental authority—went into effect, with minimal fanfare.
Since the Supreme overturned Roe a little over two years ago, abortion-hostile states have embraced the Court’s pronouncement that the time had come to “return the issue of abortion to the people and their elected representatives.” Not only have they enacted abortion bans, but many have been inventive in their effort to close off any possible access loopholes. For example, Idaho and Tennessee have invented the crime of “abortion trafficking” to deter the rendering of help to minors seeking an abortion, while Louisiana has added abortion pills to the list of dangerous controlled substances.
And while this is a direct and obvious consequence of the majority opinion in Dobbs, as many have noted, we also need to pay careful attention to Justice Thomas’ concurring opinion. Characterizing them as “demonstrably erroneous,” Thomas insists that the time to reconsider prior decisions based on the same constitutional principle as Roe (namely, substantive due process). Alarmingly, but certainly not surprisingly, he specifically identifies three landmark Supreme Court decisions which establish the constitutionally protected right to birth control, to same-sex intimacy and to marriage between same-sex partners for reconsideration.
In addition to enacting a strict abortion ban and trafficking law to punish those who assist minors with abortion access, Tennessee has also taken Thomas’ injunction to heart that the time has come to reassess constitutional protections for birth control. Towards this end, on July 1, the state’s newly enacted Family Rights and Responsibilities Act aimed at bolstering parental authority went into effect, with minimal fanfare.
Reflecting the concern of co-sponsor Rep. Jeremy Faison (R) that “[w]e live in a time that there are those who would fancy themself to be able to decide what’s best for my children outside of my purview,” the law declares:
- the liberty of a parent to the care, custody and control of the parent’s child, including the right to direct the upbringing, education, healthcare and mental health of the child, is a fundamental right; and
- that all parental rights are exclusively reserved to a parent of a child, without obstruction by or interference from a government entity.
Per the Department of Public Health’s interpretation of the law, public healthcare providers may no longer provide teens with routine sexual and reproductive healthcare, including birth control, pregnancy testing and treatment of STIs in the absence of parental consent, which they had previously been authorized to do for teens age 14 and over. This is of particular concern for rural teens as public health clinics are “often the only available option for teens needing these services in rural Tennessee counties.”
However, as Anita Wadhwani wrote in Tennessee Lookout article, given that the Family Rights and Responsibilities Act contains an exception to the consent requirement if it conflicts with “other statutes, case law or court orders,” it is “unclear how the Department of Health officials reached the conclusion” that laws permitting teens to self-consent to sexual and reproductive healthcare which are still in effect, “no longer apply to teen patients.”
It may well be that public healthcare providers are fearful of brooking the department’s injunction if they disagree with its reading of the act, given the potential professional and personal risks. Not only do they stand their license if the violate the act, but parents also have legal standing to bring a civil damages lawsuit for against a healthcare provider who, as Rep. Faison, puts it “decides to go behind the parents’ back and encourage a child in a way opposite of what that parent is allowing.”
Similar to how abortion hostility in restrictive states makes providers fearful of providing care based upon ambiguous exceptions, like in cases of “medical emergencies,” the risk of offering care to teens in the absence of parental consent based upon a good-faith understanding of the prevailing law is undoubtedly amplified when considered against the backdrop of Tennessee’s hostility to teen sexuality—a risk that could result in the loss of state licensure and/or a damages award.
This hostility is manifest in the fact that—despite having the seventh-highest teen pregnancy rate in the country—Tennessee’s sex education, or what is referred to in the state as “family life education,” is only required to be taught in schools where the pregnancy rate reaches a specified level. Where implemented, the curriculum must “emphatically promote sexual risk avoidance through abstinence, regardless of a student’s current or prior sexual experience” and teach “the positive results of avoiding sexual activity … [and] the benefits of reserving the expression of human sexual activity for marriage.” It also may not promote “gateway sexual activity,” defined as “sexual contact encouraging an individual to engage in a non-abstinent behavior.”
And if a teen does become pregnant notwithstanding the unambiguous anti-sex message? She would have been taught that life begins at conception based upon the required showing of the video “Meet Baby Olivia” in her family life education class. Produced by the extremist antiabortion group Live Action, the video has been condemned for using “misleading [and] medically inaccurate” information to “disseminate antiabortion disinformation in schools.”
If, however, she overcomes the disinformation barrier and decides she wishes to terminate the pregnancy, she is faced with the state’s total abortion ban.
Of course, although certainly a high hurdle, especially for a teen, there is the option of cross-border abortion travel. But, this brings us directly back to the parental consent barrier, as without it, anyone, including say an aunt, grandmother or older sibling, who helps her access abortion care is at risk of being jailed for the crime of abortion trafficking and being sued “for monetary damages for the ‘wrongful’ death of the fetus.”
Editor’s note: At-home abortions via medication abortion are legal, safe and available in all 50 states. The organization Plan C has a comprehensive guide to finding abortion pills on their website, which is continually updated and has all the latest information on where to find abortion pills from anywhere in the U.S.
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