Proponents: Tennessee abortion laws should avoid appeal perils

photo U.S. Rep. Chuck Fleischmann speaks to Jillyn O'Shaughnessy, left, and Pam Kolek, right, in the Double Tree Hotel's Vision Ballroom after winning re-election on Tuesday.

Tri-state abortion regulationsABORTION LAW, STATE BY STATETennessee• Health plans available under the Affordable Care Act may not cover abortion.• The use of telemedicine for the performance of medication abortion is prohibited.• The parent of a minor must consent before an abortion is provided.• Doctors performing abortions at outpatient surgical centers must have admitting privileges at a nearby hospital.• Public funding is available for abortion only in cases of life endangerment, rape or incest.Georgia• A woman must receive state-directed counseling and then wait 24 hours before the abortion is provided.• Health plans under the Affordable Care Act can only cover abortion if the woman's life or health are endangered.• Abortion services in public employees' insurance are covered only in cases of life endangerment.• The parent of a minor must be notified before an abortion is provided.• Public funding is available for abortion only in cases of life endangerment, rape or incest.Alabama• A woman must receive state-directed counseling and then wait 48 hours before the abortion is provided.• Health plans under the Affordable Care Act only cover abortion for life endangerment, rape or incest.• The use of telemedicine for the performance of medication abortion is prohibited.• The parent of a minor must consent before an abortion is provided.• Public funding is available for abortion only in cases of life endangerment, rape or incest.• A woman must undergo an ultrasound before obtaining an abortion; the provider must offer her the option to view the image.Sources: Guttmacher Institute, Times Free Press archives

NASHVILLE - Proponents of Tennessee's just-passed abortion amendment say they hope to keep state lawmakers focused on passing just a handful of new laws next year and avoid breaking new legal ground that could land the state in federal court.

"I really think you'll see the Legislature stick to the issues that were really the subject of this campaign," said David Fowler, president of the Family Action Council of Tennessee. "I hope the Legislature will model their legislation after laws we are confident are not subject to being challenged."

A former state senator from Signal Mountain, Fowler said Wednesday that boils down to issues like an "abortion-specific informed consent law," a waiting period "giving women an opportunity to reflect" unless there is a life-threatening emergency and also ensuring abortions are performed at "licensed and regulated facilities."

Those were the types of regulations Tennessee had passed prior to a successful legal challenge which resulted in a 2000 state Supreme Court ruling that struck them down and declaring the state's constitution provided rights to an abortion beyond those in the U.S. Supreme Court's landmark Roe v. Wade decision.

That spurred a 14-year crusade by Fowler and others to get the proposed change through the Legislature and before voters on Tuesday. And that prompted a furious campaign battle between Tennessee Right to Life, Fowler's group, churches and others in support of the amendment and opponents, led by Planned Parenthood organizations and the American Civil Liberties Union in Tennessee.

Each accused the other side of deceiving voters. Spending by Yes On 1 forces hit at least $2 million while the No side spent at least $4 million as of Oct. 25, according to their state financial disclosures.

It passed 53-47 percent, the lowest percentage of any of the four proposed constitutional amendments on the ballot. Voters in the four largest counties -- Hamilton, Knox, Davidson and Shelby -- voted against it.

State Rep. JoAnne Favors, D-Chattanooga, a retired nurse and health care administrator, said she has concerns over what Republican colleagues might do. She recalled working as a nurse in the 1960s and early 1970s prior to Roe v. Wade and recalled women coming in for treatment as a result of botched, illegal abortions in Chattanooga.

"I dread the thoughts of some of my colleagues who are there drafting legislation for anti-abortion bills," Favors said, later adding, "they could put so many restrictions on there that it would make it difficult, so many barriers that it would be impossible" to obtain an abortion.

State Sen. Mae Beavers, R-Mount Juliet, disagreed.

"A woman who has an abortion should be entitled to the same protections as any person going to a doctor would be entitled to," Beavers said.

Beavers was the final sponsor of Senate Joint Resolution 127, which when passed by two separate General Assemblies, was put up for voters to decide. Previous sponsors were Fowler and then-state Sen. Diane Black, R-Gallatin, who left the Legislature in 2010 when she was elected to Congress.

Like Fowler, Beavers said she sees colleagues passing laws mandating waiting periods, requiring all facilities providing abortion services, including doctors' office, being licensed and inspected and "informed consent."

State lawmakers have previously introduced bills requiring women seeking an abortion to get an ultrasound showing the fetus. Proponents backed off when critics charged that included internal ultrasounds of the fetus.

"I had not planned to file that this year," Beavers said, adding she can't speak for other lawmakers.

Fowler said regarding informed consent that it typically involves a requirement that providers describe to women medical risks and "as well as some of the consequences related to abortion" such as possible later problems with fertility as well as potential emotional and psychological issues.

Moreover, Fowler explained, it is "making sure a woman understands the fetal stage of development ... and a good understanding of the options" and services if the woman chose to parent or put her baby up for adoption.

An attorney, Fowler said the state should also enact laws requiring women to wait either 24 hours or 48 hours after first seeing a physician and then having the procedure performed. Going further would likely draw a legal challenge, he said.

As for providers, Fowler acknowledged that ambulatory surgical care treatment centers are licensed and regulated. But he said abortions are also performed at doctor-operated clinics, which are not regulated.

He appeared wary of requiring ultrasounds, noting that although he anticipates someone would introduce such requirements, "many of these laws are the subject of litigation. I think we need to spend our energy and focus first on the things we know are constitutional."

Favors said she considers informed consent, waiting periods and the other proposed measures as restrictions aimed at making an already difficult decision for women even tougher.

"A woman doesn't just wake up one morning and say I'm going to have an abortion," Favors said. "You think through that; you talk through that with someone you trust."

The regulations amount to restrictions, Favors said.

Fowler disagreed, saying they are "fundamentally different in that we regulate many things for the sake of public safety from the beautician, to make sure their instrument are sterile and not spreading disease or infection ... to the barber shop."

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

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