This story was updated Tuesday, Aug. 13, 2019, at 8:45 p.m. with more information.
NASHVILLE — In a marathon, sometimes emotional hearing Tuesday, abortion rights advocates warned Tennessee Republican senators they will sue the state and beat it in court if GOP lawmakers enact a near total abortion ban next year.
"Make no mistake, the ACLU and others will sue if this bill is passed into law," American Civil Liberties Union-Tennessee Executive Director Hedy Weinberg told Senate Judiciary Committee members at one point during the nearly six-hour hearing. "We will sue and we will win."
And state taxpayers would have to pick up the tab, she said.
Her warnings and similar ones from two other groups came during the second day of hearings on a proposal that originally was a "fetal heartbeat" bill that sought to ban abortions once a heartbeat is detected, usually about six weeks into pregnancy.
But now, Senate sponsor Mark Pody, R-Lebanon, wants to peg the the issue of a fetus' "viability," changing the meaning of the legal term to the moment a pregnancy can be detected through a hormone test, about 11 to 15 days.
Viability, a fetus' ability to survive outside the womb on its own without medical assistance, is now seen at between 24 and 27 weeks.
Pody and his allies' goal is to get abortion back yet again before the U.S. Supreme Court, where Republicans believe the nation's highest court is more open to reversing or dramatically paring back the landmark 1973 Roe v. Wade ruling legalizing abortion.
Six other states — Arkansas, Georgia, Kentucky, Louisiana, Mississippi and Ohio — have passed into law bills banning abortions around six weeks into pregnancy, according to the Associated Press. Most of those have since faced legal challenges in which federal judges have ruled against them and blocked their enforcement.
But both National Right to Life and Tennessee Right to Life aren't backing either the heartbeat bill or the viability bill.
"My point: I don't think this bill is a good one," said Paul Linton, an attorney for Tennessee Right to Life. "You don't have to do anything. There are already things in the works."
The day before, the lead attorney for National Right to Life made the same argument, saying Tennessee should choose a more modest bill that could set up different rulings from various federal appellate courts. That is the type of case more likely to attract the interest of the Supreme Court and could lead as well to a closer look by the high court at the Roe ruling, he said.
Some Tennessee Senate Republicans, however, have aspirations to being the state that cracks the Roe ruling.
"Wouldn't ours stand out as, I guess, different, at least one that has a chance getting that split?" among different appellate courts, State Sen. Rusty Crowe, R-Johnson City, asked Linton. He and others believe that with new Republicans confirmed to the U.S. Sixth Circuit Court of Appeals, which includes Tennessee, it could be a difference maker. "Wouldn't ours be the one?"
Linton said no "because the earlier you go in pregnancy prohibiting abortion, the more you have a conflict with Roe, [and] the harder it is to justify it, whatever the theory is."
The idea of going for the near total ban would rely on the U.S. Constitution's Ninth Amendment, which says the "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That approach is endorsed by Family Action Council President David Fowler, a former Republican state senator from Signal Mountain, who says states can argue their case based on "common law."
But Right to Life groups say it's a "novel" approach they believe will not work.
Republican Lt. Gov. Randy McNally, the Senate speaker, wasn't a fan of this year's fetal heartbeat bill — it passed the House but not the Senate, saying he feared the state would lose and taxpayers would be required to shell out hundreds of thousands of dollars in attorney fees for ACLU and other groups.
Instead, the Senate approved a bill that says if the Supreme Court were ever to throw out the Roe ruling, Tennessee's law would revert to its pre-Roe abortion restrictions. Republican House members approved the fetal heartbeat bill but refused to take up the Senate's bill and lawmakers adjourned in May deadlocked over the issue.
The sometimes-raucous meeting led to three to four people on both sides of the debate being asked to leave as Judiciary Chairman Mike Bell, R-Riceville, sought to maintain order and decorum during the four-hour morning session and two-hour afternoon session.
Bell, who in the 1980s was once arrested along with fellow protesters blocking access to a Chattanooga abortion clinic, didn't support the fetal heartbeat bill. And he has concerns as well about the Pody/Fowler approach on the effective total ban.
Among those testifying Tuesday was conservative activist June Griffin of Dayton, Tennessee. She told lawmakers a "heartbeat bill is not needed. It is an avenue for socialized medicine." She went on to cite a Bible verse referring to "fig leaves that have not brought any fruit."
As they did Monday, most supporters of tougher abortion restrictions wore red while those backing abortion rights wore black or pink.
But Bell's effort to maintain decorum was shattered after Cherisse Scott, founder of the nonprofit SisterReach, continued speaking after the chairman had her microphone turned off after he said she hit her allotted time limit.
Scott, who is black, noted that three-time presidential candidate Alan Keyes, who is also black, was allowed to continue past his allotted time in support of restrictions.
Turning to the mostly white abortion rights opponents in the audience, Scott said "Where have you been? Have you ever taught a sexual class? Do you know your first day of your period? If you do not know, that means you would not know if you would be ovulating."
She said the community should be working with poor people and expanding health care instead of focusing largely on abortion issues. After considerable back and forth, she left and others spoke.
Bell had said before the meetings began that the panel would not make a decision on any any bill and no measure was voted on. Instead, lawmakers would look at the issue again in January, he said.
Pody said following the meeting that he will introduce the near-total abortion ban bill requiring hormone testing in the legislative session that begins in January.
Adam Kleinheider, McNally's communications director, later said in a statement that "as a pro-life conservative, Lt. Governor McNally supports any pro-life legislation that can withstand court scrutiny and won't lead to Tennessee taxpayers lining the pockets of Planned Parenthood and the ACLU."
He said "the point of the summer study was to determine the best path forward. Lt. Governor McNally was encouraged by the testimony and looks forward to hearing from the committee on what they have learned. Lt. Governor McNally has consistently expressed his reservations regarding Senate Bill 1236 [fetal heartbeat bill]."
But alluding to Pody's new approach, Kleinheider added that "the most recent amendment does not assuage those concerns."
Contact Andy Sher at firstname.lastname@example.org or 615-255-0550. Follow him on Twitter @AndySher1.