Federal judge places hold on Tennessee heartbeat-based abortion ban

Pregnancy Test Credit Flickr Ernesto Andrade  CNA Ernesto Andrade via Flickr.

Citing the need to protect the unborn, the Tennessee governor has signed strong heartbeat-based abortion restrictions into law. However, a federal judge quickly placed a temporary injunction on the law.

"We all have the responsibility to protect the most vulnerable in our community," Governor Bill Lee said in a signing ceremony broadcast on Facebook Live July 14. "The most vulnerable in Tennessee includes the unborn."

With the signing of the bill, he said, Tennessee becomes "one of the most pro-life states in America".

Lee had previously made the bill a priority for the legislative session on the grounds that "every human life is precious, and we have a responsibility to protect it."

The Tennessee Senate passed a ban on abortion June 19 by a 23-5 party line vote. A lawsuit was filed against the law soon after it passed the senate.

Plaintiffs opposing the law include the American Civil Liberties Union, its Tennessee affiliate, the Planned Parenthood Federation of America, and the Center for Reproductive Rights.

The legislation bars abortion after the point at which a fetal heartbeat can be detected, as early as six weeks into pregnancy.

Backers of the bill claim to have designed its provisions to withstand court challenge.

If the courts strike down Tennessee's heartbeat-based abortion ban, about six weeks into pregnancy, the legislation would automatically enact a ban on abortion at ten different gradations: eight, 10, 12, 15, 18, 20, 21, 22, 23, and 24 weeks into pregnancy.

It bars abortion if a woman is known to be seeking an abortion because of the unborn child's sex or race, or because of a diagnosis of Down syndrome. The law bars abortions for juveniles in the custody of the state's Department of Children's Services, and removes the ability to petition a judge for permission for an abortion.

The law would allow abortion if a woman's life is in danger but not if the unborn child is conceived in rape or incest.

Pro-abortion rights critics were vocally opposed.

"Banning abortion is blatantly unconstitutional, and the lawmakers who passed this law are well aware," Jessica Sklarsky, senior staff attorney at the Center for Reproductive Rights, said July 14. "It is unconscionable that - in the middle of a public health crisis and a national reckoning on systemic racism - lawmakers are focused on trying to eliminate access to abortion."

"Abortion is an essential health service, and this law clearly violates the constitutional rights of patients and disproportionately harms communities of color," she said, according to the television station Fox 17 Nashville.

The ACLU of Tennessee attempted to counter bans on abortion "motivated by sex, race or disability diagnosis of the unborn child." These "reason bans," the group contended, are "peddling stigma around abortions and stereotypes of Black and Brown communities, Asian Americans, and people with disabilities."

Last month State Rep. Susan Lynn, a sponsor of the bill, told EWTN Pro-Life Weekly that Tennessee lawmakers anticipated a legal challenge to the bill, so they used a "ladder approach," of multiple limits, so if the court strikes down the heartbeat ban portion, the remaining bans will remain in place.

"There's a successive order of dates where the court can reach that level where they feel comfortable," Lynn said.

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Lynn said she hoped the bill's heartbeat ban stands because "a heartbeat is an indicator of life."

"So it only makes sense that when there is a heartbeat, there cannot be an abortion," she said.

Under the law, a doctor must determine the gestational age of the unborn child and inform the mother, allow the woman to hear the fetal heartbeat and explain the location of the unborn child in her uterus, conduct an ultrasound and display the images to the mother. The abortionist must provide an explanation of the unborn child's size and explain which external body parts and internal organs are present and visible.
A heartbeat-based abortion ban passed the Tennessee House last year but Republican Lt. Gov. Randy McNally did not support it in the Senate.
Similar laws in Mississippi, Ohio, and other states have been struck down in court.

If the law takes effect, a doctor who performs an illegal abortion would face a Class C felony.

The bill drew support from pro-life advocates.

"This law recognizes the humanity of the unborn child by stopping abortion as soon as a heartbeat can be detected, protecting them from lethal discrimination in the womb, and ending late-term abortions after five months, when unborn babies can feel excruciating pain, Marjorie Dannenfelser, president of the Susan B. Anthony List, said June 19.

She characterized the bill as a rejection of "abortion extremism" in states such as New York and Virginia, where legislators have "pushed to expand abortion on demand through birth and even infanticide."

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The law requires abortion clinics to post a sign saying that it is possible to reverse a chemical abortion, or face a $10,000 fine.
Similar Arizona legislation, passed in 2015, was repealed in 2016 after legal challenges. Arizona had to pay Planned Parenthood and other abortion providers more than $600,000 in attorney fees and other costs spent fighting the law, the Associated Press reported.

Due to the novel coronavirus epidemic, the bill was thought to be shelved. It appeared to have revived in last-minute negotiations between the House and Senate, The Tennessean reports. The Senate rules were suspended when the bill was passed and no members of the public were present.

The manner in which the bill was passed also drew criticism from its foes.

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