NASHVILLE — Tennessee Senate Republicans and fellow abortion rights opponents divided sharply Monday over a proposed near-total abortion ban that would be one of the nation's strictest, with a National Right to Life legal expert warning both the risky approach and legal strategy on which it relies likely will fail in federal courts.
Before a packed committee room of several hundred, the GOP-led Senate Judiciary Committee members heard testimony, comments and sometimes-heated arguments on the proposal during their first of two days of hearings.
The proposal is a follow-up to Republican Sen. Mark Pody's controversial fetal heartbeat bill last session. It passed the Republican-controlled House but fizzled in the GOP-dominated Senate. No bill will be taken up until January.
While the fetal heartbeat bill sought to ban abortion after it can be detected — usually about six weeks into pregnancy — Pody, a Lebanon lawmaker, wants to use another method to ban it at conception.
It relies on blood and urine tests to detect a hormone that can show up as early as 11 days after conception. It seeks to redefine a fetus' viability — the point at which it can survive outside the womb — at that moment, thus barring an abortion.
Pody and allies are relying on an untested legal strategy that seeks to use common law to defend the law. The overall goal is to get into court with new arguments and different rulings from federal appellate courts, persuading the U.S. Supreme Court to take it up and overturn its landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.
As part of the national trend, six states — Arkansas, Georgia, Kentucky, Louisiana, Mississippi and Ohio — passed bills this year banning abortions around six weeks into pregnancy, according to the Associated Press. Most of those have since faced legal challenges, where federal judges have indicated that the laws will likely fail to hold up under the legal precedents set by the high court, according to the AP.
Senate Judiciary Committee Chairman Mike Bell, R-Riceville, who as an anti-abortion activist in the 1980s was once arrested seeking to block entry to a Chattanooga abortion clinic, had opposed the fetal heartbeat bill because he felt it would simply get tied up in federal courts and never get to the Supreme Court.
In opening the hearing, Bell said, "there may be no other issue that creates this much passion."
Testifying in favor of Pody's effort was Family Action Council of Tennessee President David Fowler, a former state senator and a Bell friend and often an ally. But the two have parted ways on the issue.
Fowler has sought unsuccessfully for years to get state courts to overturn the Supreme Court's landmark Obergfell decision that legalized same-sex marriage.
"Where we stand here today, your track record is not good. Give this committee — an argument that could actually resonate with the courts," Bell told Fowler.
Fowler said two of his challenges to Obergfell were "thrown out not on merits but on standing."
Both Fowler and an Alabama law professor saw merit in a new strategy by using the Ninth Amendment that alludes to "common law" rights not spelled out in the Constitution as the basis of a new attack on Roe v. Wade.
Roe was decided on the Fourteenth Amendment's due process clause with a "right to privacy" for women deciding whether to have an abortion.
Jim Bopp, general counsel with National Right to Life who has been involved in abortion litigation since 1978, was a skeptic of the proposal, calling reliance on the 9th Amendment to invoke protections under common law a "novel" approach.
If Pody's proposal becomes state law, Bopp said, it "will never be upheld and presents such a stark choice the Supreme Court will run away from it." Viability means just that, the ability to survive outside the womb, he said.
Bopp urged Republican lawmakers to narrow focus on an abortion-related issue that could produce differing results in federal courts of appeals and thus are more likely to invite the Supreme Court to take up the issue. Once the Supreme Court takes up a case, something dramatic could happen, he said.
His suggestion was a "one person parental notice," involving a minor who is pregnant, with no judicial bypass to spur courts' reaction.
Ashley Coffield, president and chief executive officer of Planned Parenthood of Tennessee and North Mississippi, called the hearing a "mess" with a "lot of lies and misinformation about women's health care, about pregnancy."
While some health care providers on both sides are expected to testify Tuesday, Coffield said neither she nor several women who have had abortions are being allowed to appear.
Contact Andy Sher at firstname.lastname@example.org or 615-255-0550. Follow on Twitter @AndySher1.