Tennessee Criminal Lawyer Blog

The General Assembly passed a proposal—SJR 127—to amend Article 1 of the Tennessee Constitution. If passed, the amendment could open the door for changes to Tennessee criminal abortion laws. The proposal reads,
“Nothing in this Constitution secures or protects a right to abortion, except in cases involving rape or incest or in cases where the procedure is medically necessary to save the life of the pregnant woman. Nothing in this Constitution requires the funding of an abortion. No person shall perform a partial-birth abortion.”

How might this change existing abortion Tennessee criminal law? By reading the amendment, one might think that it would allow the General Assembly to pass a blanket law banning abortion. Since states are also bound by the Federal Constitution and Supreme Court decisions interpreting the Constitution (particularly Roe v. Wade and Planned Parenthood v. Casey), it is unlikely that the General Assembly would attempt to pass such a bill unless it wanted to launch a full-scale assault on settled federal law. (Given the conservative bent of the Supreme Court, this is not outside the realm of possibility.)

What it might change is the Tennessee Supreme Court decision that struck down a statutory requirement that an abortion must take place in a hospital when it is performed after the first trimester. In coming to this decision, the Supreme Court held that Article 1 of the Tennessee Constitution guaranteed a pregnant woman a right of privacy, which includes the right to have an abortion. Requiring a woman to have her abortion in a hospital, the Court held, violates this right. If the Constitution is changed, however, the reasoning of this case would no longer apply, and law enforcement would be free to enforce the hospital requirement.

On the Internet, as is often the case, there is much misinformation regarding the Amendment. Without publishing the text of the Amendment, Planned Parenthood stated, [i]t is a dangerous, extreme, and deceptive measure [that] makes no exception for rape, incest or health of the mother.” This is absolutely false. When it was initially proposed, the proposal stated that the “people retain the right [to enact legislation under] circumstances of pregnancy regarding rape, incest or health of the mother.” While this could be read as a clandestine effort to open a door to remove the infamous health exception, the revised language shuts this door completely when it states, “except in cases…where the procedure is medically necessary to save the life of the pregnant woman.”

The abortion proposal will be up for a second vote in 2011 when it will have to pass the House by a two-thirds majority. Only then can it move forward to a gubernatorial ballot. While the amendment seems a long way off, the culture war is just heating up. As such, there will be much misleading information on what is and what is not an abortion crime in Tennessee. If you have been charged with such a crime, you will want a criminal defense attorney with the knowledge necessary to help you understand your case. Call the experienced Knoxville criminal defense attorneys skilled in abortion crimes at Baker Associates today so that we can help you mount the best possible defense.