Tennessee’s Amendment 1 May Not Be Enough to Reinstate Unconstitutional Informed Consent Law

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Analysis Law and Policy

Tennessee’s Amendment 1 May Not Be Enough to Reinstate Unconstitutional Informed Consent Law

Imani Gandy

With November's passage of Amendment 1, Tennessee anti-choicers finally had what they needed to pass the very same restrictive abortion laws the state supreme court had struck down 15 years ago. Or so they thought.

“A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.”

With those words, written in the landmark decision Planned Parenthood v. Sundquist in 2000, the Tennessee Supreme Court sparked a 15-year-long crusade by anti-choice campaigners to amend the Tennessee Constitution, strip Tennesseans of abortion rights, and bring Tennessee in line with federal law.

Because the court in Sundquist had determined that Tennessee would provide protection for abortion that exceeded that available under federal law, for 15 years the right to an abortion in Tennessee was fundamental. Any law infringing on it was subject to strict scrutiny, the most rigorous standard of constitutional review. During those 15 years, if Tennessee wanted to restrict that fundamental right, it would have had to have a very good reason for doing so—the regulation would have had to be narrowly tailored to further a compelling government interest.

This outraged anti-choicers, who decried the Sundquist decision as a product of an activist supreme court.

Roe has collapsed and Texas is in chaos.

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But the idea that laws regulating abortion should be subject to strict scrutiny was neither new nor outrageous. The Tennessee Supreme Court was simply following federal law as it had existed between 1973 and 1992.

In 1973, the United States Supreme Court ruled in Roe v. Wade that government regulation of abortion must be subjected to strict scrutiny. Fewer than 20 years later, a three-justice plurality in Planned Parenthood v. Casey abandoned Roe’s strict scrutiny standard for “undue burden,” which permits a state to restrict abortion as long as it doesn’t place a “substantial obstacle” in the path of a woman seeking an abortion of a nonviable fetus. This is a far more nebulous standard that, in his dissent from the plurality in Casey, Justice Scalia declared to be “ultimately standardless.”

Nevertheless, in 2000 anti-choice campaigners in Tennessee balked at the state supreme court’s view that the Tennessee Constitution offered protection for abortion rights that exceeded the protection available under federal law. They immediately began to push for an amendment to the state constitution that would render its protections for abortion consistent with the protections available under the U.S. Constitution, thus allowing lawmakers to pass harsh measures meant to restrict abortion and reproductive health-care access.

On November 4, 2014, Tennessee voters approved one such amendment, Amendment 1:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

With the amendment’s passage, anti-choicers finally had what they needed to pass the very same laws the state supreme court had struck down in Sundquist.

Or so they thought.

In Sundquist, the supreme court struck down abortion regulations that the legislature had previously passed: a mandatory two-day waiting period and the “physician-only” counseling requirement, a provision that an “attending physician” must give patients state-mandated information. The state court of appeals had already struck down physicians’ obligation to tell patients that “abortion in a considerable number of cases constitutes a major surgical procedure.” 

Soon after Amendment 1 passed, the legislature introduced bills that would reinstate these regulations.

Under the guise of “informed consent,” the Republican-controlled house and senate introduced SB 1190 and HB 989 in February in order to, in the bills’ own words, “revive and reenact the informed consent and waiting period provisions for abortion that were in effect prior to the Tennessee Supreme Court decision of Planned Parenthood of Middle Tennessee v. Sundquist.” (The legislature also introduced SB 13, which contains the informed consent provision, including the physician counseling requirement and the “major surgical procedure” statement, but not the two-day waiting period requirement contained in SB 1190 and HB 989.)

Since Amendment 1 obviated the need for these provisions to pass the strict scrutiny standard—no longer do the provisions need to be “narrowly tailored to further a compelling government interest”; they need only surpass the less demanding “undue burden” standard—anti-choicers seem certain that the Tennessee supreme court will have no choice but to declare them constitutional.

But that’s not true.

What these anti-choice campaigners have seemingly failed to consider is that the state supreme court struck down the informed consent and waiting period provisions under both a strict scrutiny and undue burden standard, and the court may very well decide to let that decision stand.

In an opinion published on February 6, Tennessee Attorney General Herbert Slatery III made this point in response to questions posed by a state senator about what the supreme court would do, should the informed consent and waiting period provisions wind their way back up through the appeals process.

“The Tennessee Supreme Court’s ruling that a woman’s right to terminate her pregnancy is protected by the fundamental right of privacy found in the Tennessee Constitution—a right requiring application of the ‘strict scrutiny’ standard—is no longer good law,” Slatery wrote.

But, Slatery pointed out, the state supreme court struck down the “physician-only” counseling requirement as well as the two-day waiting period under both the strict scrutiny and undue burden standards:

In Sundquist, the Tennessee Supreme Court interpreted and construed the requirements of the challenged statutory provisions and concluded that they are constitutionally infirm under the federal undue burden standard—as well as under the strict scrutiny standard. (Emphasis in original.)

Accordingly, an application of stare decisis—Latin for “let the decision stand”—would require that the supreme court follow its prior rulings and strike down these provisions yet again, especially since the language in the 2015 proposed laws is the same as the language struck down in 2000.

Nevertheless, as Attorney General Slatery noted in his opinion, the 2015 court might decide to reexamine the constitutional validity of the reenacted statutes using the undue burden standard, even though the 2000 court had already struck them down under that same standard.

And if that happens, the result cannot be predicted with any degree of certainty: “[T]he undue burden approach is essentially no standard at all, and, in effect, allows judges to impose their own subjective views of the propriety of the legislation in question,” Slatery wrote, citing the supreme court in Sundquist.

To underscore the point, he went on to detail the court findings on the provisions at issue in Sundquist.

In Sundquist, the trial court found the waiting period requirement, the “physician-only” counseling requirement, and the requirement that physicians inform their patients that “abortion in a considerable number of cases constitutes a major surgical procedure” all unconstitutional under the federal undue burden standard and struck them down. These same provisions are included in the newly introduced trio of bills.

The court of appeals, applying the same undue burden standard, struck down the requirement that physicians inform their patients that “abortion in a considerable number of cases constitutes a major surgical procedure.” Unlike the trial court, however, the court of appeals upheld the waiting period requirement and the “physician-only” counseling requirement.

The supreme court, which did not rule on the “major surgical procedure” statement (because the State of Tennessee did not appeal that issue to the supreme court) reversed the court of appeals, striking down both the waiting period and “physician-only” counseling requirements under the federal standard.

So the question becomes, in light of these rulings: What can we expect the state supreme court to do when faced with these laws again?

Last year’s dramatic retention election provides some indication.

Every eight years, voters in Tennessee are tasked with the responsibility of deciding whether to retain sitting supreme court justices. In the run-up to the August 7 retention election, conservatives, led by Lt. Gov. Ron Ramsay and backed by Koch-funded Americans for Prosperity, attempted to oust the three judges appointed by Democratic Gov. Phil Bredesen—Sharon Lee, Gary Wade, and Connie Clark—so that Republican governor Bill Haslam could replace them with conservative justices and cement a five-vote conservative majority.

According to the Times Free Press, the retention election was the most expensive in Tennessee’s history, with the three Democratic justices collectively spending $1.13 million to keep their seats.

After the election, Democrats were able to maintain their three-vote majority on the supreme court. What this means for abortion restrictions that the court has not already considered is anyone’s guess.

But when it comes to the informed consent and waiting period provisions that have already been ruled unconstitutional under the federal undue burden standard, anti-choice campaigners like Tennessee Right to Life, which announced in a press release that it hoped to “restore previously passed legislation that was struck down by an activist court,” may be in for a rude awakening.

It seems unlikely that a liberal majority of the Tennessee Supreme Court will reverse course.

Then again, anything can happen.