NASHVILLE - Tennessee Attorney General Herbert Slatery says in a new legal opinion that a bill seeking to outlaw abortions if a fetal heartbeat is detected is "constitutionally suspect."
The opinion was rendered Wednesday as a controversial bill to make abortions illegal in cases where a physician detects a heartbeat following a mandatory ultrasound in non-medical emergency situations was delayed a week in a House panel amid questions and concerns.
"Recent judicial decisions support the conclusion that the proposed legislative prohibition upon pre-viability abortions after detection of a fetal heartbeat is constitutionally suspect," Slatery wrote, citing a case involving a similar North Dakota law.
But the opinion also noted that "that the other proposed changes" to current Tennessee law "are constitutionally defensible." That includes the requirement that a woman, absent a medical emergency, be required to undergo an ultrasound.
The bill, sponsored by Rep. Micah Van Huss, R-Gray, was up in the House Civil Justice Subcommittee on Wednesday.
Tennessee Right to Life President Brian Harris testified against the bill, warning that although he personally supports such measures his concern is the law would be found unconstitutional, wind its way through the federal court system and ultimately resulting in an adverse decision on the fetal heartbeat measure but other abortion-related laws.
"Running legislation that is documented to be unconstitutional by the Supreme Court is not a good use of our time," Harris said, according to The Tennessean.
On Thursday, Van Huss was dismissive of Slatery's legal opinion, noting that although he had yet to read it, "I passed a couple of bills since I've been here where he issued his opinion. I don't care what his opinion is. It's just that, an opinion."
But Lt. Gov. Randy McNally, the Republican Senate speaker, also on Thursday, said that although he hasn't read Slatery's legal opinion yet, the lawmaker who sought Slatery's advice, Senate Judiciary Committee Chairman Brian Kelsey, R-Germantown, gave him a "brief update" about it.
McNally essentially is backing Harris' view that attempting to plow new ground at this point on abortion laws is risky.
"What we wouldn't do is pass a statute that puts some of our other laws in danger."
Tennessee Right to Life, the state's leading anti-abortion organization, fought successfully to gut a 2000 Tennessee Supreme Court ruling that found the state's constitution contains a greater right of privacy than those outlined in the landmark U.S. Supreme Court cited in its landmark Roe v. Wade decision.
The group and allies in 2014 pushed an amendment to the Tennessee Constitution which was approved by voters. It says in part that "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion."
Since then, the Republican-controlled General Assembly has passed restrictions with a careful eye on what federal courts will allow.
