'Trigger' bill would ban most abortions if Roe v. Wade overturned

Tennessee State Capitol

NASHVILLE - An alternative to the state's "heartbeat" bill is scheduled to gets its first hearing Wednesday in a legislative House subcommittee. But unlike the heartbeat bill, which seeks to challenge the Roe v. Wade decision legalizing abortion, the proposed "Human Life Protection Act" would only take effect if the U.S. Supreme Court overturns the landmark 1973 decision.

Known as the "trigger bill," the measure is seen as a safer legal approach than the heartbeat bill, which the GOP-run state House approved March 7 on a 65-21 vote. It's also more restrictive.

The House heartbeat bill, which has the support of Gov. Bill Lee, bans abortions in most instances after a heartbeat is detected, which can be as early as six weeks, before women may know they are pregnant.

But the trigger bill prohibits abortion after fertilization or a pregnancy is confirmed with the exception of life-threatening medical emergencies. It would only go into effect 30 days day after a Supreme Court ruling would allow it or following states' adoption of an amendment to the U.S. Constitution giving states the authority to ban abortions.

It would also make it a felony for a physician to perform an abortion except in rare cases.

If criminally charged, a doctor would have to demonstrate the decision was based on his or her "good faith medical judgment" and "known facts" that the procedure was "necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman."

Under the bill, physicians would not be prosecuted for medical treatment provided to a pregnant woman which "results in the accidental death of or unintentional injury to or death of the unborn child." wouldn't be a violation of the law.

And women seeking an abortion could not be prosecuted.

Like the heartbeat bill, it provides no exceptions for rape or incest.

Four states have passed "trigger" law, according to the Guttmacher Institute, a research organization a research group that supports abortion rights.

"We're just trying to basically protect human life, and if the Supreme Court should sometime in the future overturn Roe, then this bill would be set up in law that abortion would become illegal," said House Finance Committee Chairman Susan Lynn, R-Mt. Juliet, the bill's sponsor in the lower chamber.

She said she does not see the trigger bill as a "competitor" to the fetal heartbeat bill.

Last month after introducing the bill, Lynn said: "I think this bill gives hope to Tennesseans."

While the House's fetal heartbeat bill had support from Speaker Glen Casada, R-Franklin, and most other GOP leaders, the trigger bill is the route preferred by Lt. Gov. Randy McNally, R-Oak Ridge, the Senate speaker, and other top Republican leaders.

"The interest is in the trigger bill, and we want to make sure that gets passed," McNally told reporters last week.

He said there are concerns the heartbeat bill could run into legal trouble. The American Civil Liberties Union of Tennessee has said it will sue the state if the bill becomes law.

And if Tennessee were to lose in court on the fetal heartbeat bill, McNally said, state taxpayers could be on the hook and pay hefty legal fees to attorneys for Planned Parenthood and the ACLU.

"That is a big concern," he said. "We don't want to put money in their pockets."

The intent is "to construct a law that won't get us in court on the losing side," he added.

Tennessee Right to Life is fully behind the trigger bill, sponsored in the upper chamber by Sen. Dolores Gresham, R-Somerville. But the group has expressed concerns about the heartbeat bill.

And David Fowler, a former Republican senator from Signal Mountain who has long fought legal abortion and is now head of the conservative Christian group Family Action Council, recently posted concerns about the fetal heartbeat bill on FACT's website.

An attorney, Fowler pointed out the bill, sponsored by Rep. Micah Van Huss, R-Gray, and Sen. Mark Pody, R-Lebanon, "looked nothing like the bills being proposed in other states."

Other states, he wrote, "have recognized that fetal heartbeat legislation will be subjected to tough treatment in the federal courts, so they have put into their bills whereas clauses to justify and explain the approach they are taking and why the U.S. Supreme Court should consider their legislation differently from other failed attempts at fetal heartbeat legislation."

But, Fowler added, "inexplicably, Tennessee's representatives decided no explanations and justifications were needed. Unfortunately, having ignored the collective wisdom of sister states as to what's needed to challenge long-standing Supreme Court precedent, the heartbeat bill, if passed, is likely to die in court."

Georgia is also working to enact a heartbeat bill similar to the one that's passed the Tennessee House as well as Republican-run legislatures in a number of states. Lawmakers aim to invite lawsuits as part of an effort to get the abortion issue back before the U.S. Supreme Court, hoping the nation's highest court revisits Roe v. Wade and issues a ruling allowing further restrictions.

On Friday, Georgia's Senate passed the heartbeat bill. It now heads back to the House where members who approved it earlier are expected to concur with Senate-made changes and give final approval.

Other states currently weighing strict abortion laws are Florida, South Carolina and Ohio.

Republican governors in Mississippi and Kentucky have recently signed heartbeat abortion bans. A federal judge in Kentucky blocked it from going into effect.

The Tennessee abortion trigger bill is HB1029/SB1257. The fetal heartbeat bill is HB77/SB1236.

Contact staff writer Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on Twitter @AndySher1.