NASHVILLE, Tenn. (BP) - On the last day of the Tennessee General Assembly legislative session, a sweeping pro-life bill went from near extinction to becoming law.
House Bill 2263 passed late Thursday night, June 18, and the companion Senate Bill 2196 passed just after midnight Friday morning. The votes in both chambers were by landslide margins, and Gov. Bill Lee has promised to sign it once it arrives on his desk. The bill closely resembles pro-life legislation Lee proposed in January, legislation many thought had been derailed in this session by the COVID-19 pandemic. A late surge to close out the legislative session brought the bill from a figurative scrap heap to passage before legislators adjourned for the year.
One of the primary sponsors of HB 2263 was Rep. Susan Lynn, R-Old Hickory. Lynn said the bill is "a very just and very fair law," adding she was hopeful its passage "could protect more babies and more life."
The bill, which is considered one of the strictest pro-life legislation in the country, includes a provision that makes abortion illegal. The exception is if it will save the mother's life or in cases of serious risk once a fetal heartbeat can be detected. That could be as early as six weeks' gestation.
The bill also codifies as a Class C felony "performing or inducing, or attempting to perform or induce, an abortion upon a pregnant woman if the person knows the woman is seeking the abortion because of: The sex of the unborn child, the race of the unborn child or prenatal diagnosis, test, or screening indicating Down syndrome or potential for Down syndrome in the unborn child."
The bill requires four actions of a physician. One: determine and inform the mother of the gestational age of the fetus. Two: allow the mother to hear the fetal heartbeat. Three: conduct an ultrasound and display the images for the mother to see. Four: explain the fetus' dimensions and which external body parts and internal organs are present and visible.
The bill's journey through the House and Senate to the governor's desk was a long one. Last year, SB 1236 died in committee. The law would have clearly defined life as beginning at conception. It was one many legal experts believe had a strong chance to challenge Roe v. Wade at the U.S. Supreme Court. Tennessee Baptist Mission Board Executive Director Randy C. Davis represented Tennessee Baptists when he testified before a senate sub-committee expressing strong support for the SB 1236. Similar bills proposed this legislative session have also quickly died.
In anticipation of a legal challenge, the bill's writers included abortion bans at ten different fetal gestation stages from the heartbeat to 24 weeks. The idea is that the bill gives the court the option of deciding when the law can ban abortion.
Not everyone is a fan of the laddered structure of the bill. David Fowler, president of Family Action Council of Tennessee said the law affirms the absolute right to life, but intentionally leaves it up to a federal judge to decide, as a matter of public policy, when that life should be protected. "If life begins at conception and if we believe the Supreme Court's interpretation of the Constitution is wrong, then I would have preferred the legislature just say that [life begins at conception],” he said. “By 'laddering,' the legislation effectively concedes the fundamental proposition that federal courts, not state lawmakers, decide state abortion policy."
Fowler did appreciate the provision that required providers to notify women seeking a chemical abortion of the possibility of reversing the process after the first of the two different drugs needed for the abortion are administered and before the second dose is taken. The ultrasound provision, he said, may prove helpful. However, the courts have already said that to be constitutional, the doctor is free to advise the woman that she should not hear the heartbeat or view the ultrasound.
Davis is cautiously optimistic. "I am thankful for the state representatives and senators taking a stand for the unborn," he said. "I welcome any legislation that will move toward protecting more unborn Tennesseans. So, I'm hopeful this law will be a strong step in the right direction."
There is no doubt the law will wind up challenged in the court system as Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, said in a statement June 19. "As promised, we will see them in court," she said. "The Tennessee General Assembly's passage of this dangerous, flatly unconstitutional bill is unacceptable."