Parade of Horribles: The Real Risks of Amendment One

What is Amendment One?

In 2000, the Tennessee Supreme Court ruled in Planned Parenthood v. Sundquist that the Tennessee Constitution offers more protection than even the United States Constitution to Tennesseans making personal reproductive decisions. As a result–while legislators in most states search for more and more ways to prevent access to safe abortion–Tennesseans have been notably free from some of the unnecessary restrictions that have popped up in the past few years and under which the rest of America is buckling. (It is telling that by 2010–even as the abortion rate for Tennesseans dropped–women from out-of-state sought roughly one of every four abortions performed in Tennessee.)

Restrictions to abortion access enacted in 2013. While Tennessee is considered “hostile to abortion,” no new restrictions were enacted here in 2013. By contrast, between 1 and 10 new restrictions were passed in all but one bordering state, forming a ring of restriction around Tennessee.

This fall, the Tennessee Legislature is asking Tennessee to vote yes on Amendment One. “Nothing in this Constitution secures or protects the right to abortion,” the amendment reads, a clear and complete contradiction of the Court’s 2000 finding that “a woman’s right to terminate her pregnancy is a vital part of . . .  the Tennessee Constitution”¹[emphases added].

The amendment continues: “The people retain their right through their elected state representatives and state senators to enact, amend, or repeal laws about abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother” [emphasis added].

It bears repeating (if the added emphases–of which I am clearly so fond–were not enough): The “people” [read: the legislature] “retain” [read: will claim] “the right” [read: the power] to enact any law they like regarding abortion, and they could craft those laws to apply even in instances of rape, incest, or risk to the mother’s life. 

For brevity’s sake and in terms that the internet will understand, that means:

What kind of laws will they be? Total criminalization  is not out of the question, based on both the wording of the amendment and the precedent set by Louisiana Republicans threatening this tactic. Our red-state could also approach the issue more gradually, by introducing or re-introducing burdensome laws that have the sole effect of limiting access to abortion. So here it is: your “parade of horribles,” a list of laws that the Tennessee legislature could roll out as early as next year if Amendment One passes.

Laws as a consequence of reversing Planned Parenthood v. Sundquist

Because passing Amendment One would essentially have the effect of reversing the decision of the Tennessee Supreme Court², the Tennessee legislature might take it as an opportunity to re-introduce the laws that were struck down by the Court in that decision. What were those?

“Second semester abortions must be performed in a hospital.”

In the 2000 decision, the Tennessee Supreme Court determined that Tennessee Code Ann. § 39-15-201(c)(2)–which required hospitalization for second-trimester abortions–was unconstitutional³. After hearing “substantial evidence” that abortion is safe outside of a hospital setting up until 18 weeks⁴, the Court determined that the law was “not narrowly tailored to promote maternal health”⁵. Further, because the law explicitly stated that there was no exception for a medical emergency that risked the life of the mother, the Court found that it was unconstitutional even on the less-protective, federal level⁶.

But what’s the big deal?

As the Tennessee Supreme Court heard, there’s a lot of evidence that it’s no riskier to get an abortion in a free-standing surgical center, so the law wouldn’t really protect maternal health. This makes the law sort-of arbitrary, and–as a general rule–we shouldn’t allow our lawmakers to pass arbitrary laws.

What would the law do, then? For one thing, it would mean that, after 14 weeks, pregnant Tennesseans that wanted to end their pregnancies would have a lot fewer options. Not only would a woman need to bypass her friendly, local, reproductive health clinic and head straight to the hospital, but she may not be able to get an abortion at the hospital when she arrives, since Tennessee allows individuals, private institutions, and public institutions to “opt-out” of providing abortions. Is your local hospital affiliated with a religious organization? I’m from middle Tennessee and I know that St. Thomas Health Services (a Catholic organization) manages five major medical centers and is affiliated with a handful more in the region. Even some public institutions, like university hospitals, have agreed not to perform abortions in exchange for generous grants.

While hospitals should definitely make the move towards being more accepting and accommodating of abortion, requiring hospitalization also increases cost of the procedure, again reducing the ability–this time, financial–of women to access abortion. This is especially problematic in states that limit the public funding of abortion–like Tennessee. (In 45 states, Medicaid does not cover the cost of an abortion.)

Reducing access to abortion in these ways for no good reason does not make for good law–although the suspicion remains that the Tennessee legislature may be more interested in paring down Tennesseans’ reproductive rights than producing good law. Amendment One may just give them that ability.

“The attending physician must give the patient information about the abortion, personally.”

The Supreme Court also analyzed Tennessee Code Ann. § 39-15-202–which required that the attending physician must give a woman seeking an abortion information about the procedure him- or herself⁷. After hearing evidence that “it is standard throughout the medical community for health care professionals other than the attending physician to provide needed counseling”⁸–just ask a nurse–the Court determined that the only effect of this requirement was to “place a substantial obstacle in the path of a woman seeking an abortion”⁹–a tactic forbidden even on the Federal level by the United States Constitution as interpreted in Planned Parenthood v. Casey.

But what’s the big deal?

Shouldn’t a doctor be involved with a woman’s decision to terminate her pregnancy? Sure. But, as the Court noted, the doctor is involved on the day of the procedure. It’s normal for nurses and other support staff to help explain medical procedures, side-effects, and after-care beforehand in a lot of situations, and this kind of help is particularly necessary in abortion clinics where there may be only one doctor available part-time. (Believe it or not, it’s not a popular field of medicine due to the danger and stigma). It’s a lot of pressure to expect a doctor to perform all of his or her work in addition to that of the support-staff, especially when it does nothing to improve women’s health.

Again, it raises the question about what the Tennessee State Legislature is concerned with: Good law that improves the health and well-being of Tennesseans? Or pressuring doctors out of providing necessary reproductive health services? If Amendment One passes, Tennessee Legislators may take that as a green light to reintroduce this law–which only does the latter.

“The consultation must be followed by a two-day waiting period.”

The same section of the Tennessee Code required a two-day waiting period after the initial consultation, something that has been put in place in many other states¹⁰. While the lawyers for the State tried to make the law seem more forgiving than it was¹¹—foreshadowing!?!–the Supreme Court found that the text of the legislation clearly called for two separate visits (an in-person consultation and the procedure itself) spaced two days apart.  The Court found that waiting periods may actually have a negative effect on maternal health¹² and that they place “a substantial obstacle in the path of a woman seeking an abortion”–which makes them unconstitutional¹³.

Waiting periods by state as of May 2014. The encroaching “ring” of restrictions around Tennessee is again conspicuous in this graphic.

But what’s the big deal?

First of all, although abortion complications are rare, the risk of complications increases as a pregnancy moves further along. Forcing women to wait puts them at greater risk, and this alone should invalidate such a law (IMHO).

But shouldn’t someone getting an abortion think about it first? Most definitely. However, women can and do think about it, without an additional, arbitrary amount of time passing between the consultation and the procedure. Women don’t just start thinking when they get to the doctor’s office. Time passes between a missed period, a first pregnancy test, a first doctor’s visit, scheduling a visit to a clinic, and the actual date of the appointment itself. Here in Memphis, one clinic I’m familiar with books appointments three weeks out to accommodate all of its patients (and there are two clinics in our city). Additionally, the Court heard evidence that, as they wait, women experience “increased stress, nausea and physical discomfort, but very few have reported any benefit from having to wait”¹⁴. Subjecting women to even more physical discomfort and anxiety than they’ve already experienced is another good reason to do away with these laws.

And without any recognizable benefit to waiting, there’s no good reason for this law that makes obtaining an abortion even more expensive, especially in cases where the nearest clinic might be one-hundred miles away. Along with the initial travel expenses (money for gas or for bus fare), a waiting-period adds expenses for a hotel or motel and child-care expenses for parents leaving children behind, not to mention wages lost if one or both partners take off work over multiple days. Obviously, requiring two visits hit poor women the hardest, and leaving the house twice poses special risks for pregnant people in un-supportive or even abusive relationships.

Most importantly, the Court quotes from the trial court’s finding¹⁵ that:

A woman contemplating an abortion should be allowed “sufficient time for reflection” before she makes an informed decision. However, a “sufficient amount of time” varies with each individual woman, and the inflexibility of a two-day waiting period . . . requires its invalidation. The majority of the expert testimony seemed to acquiesce in the fact that most women have seriously contemplated their decision before making their appointment; several of the witnesses testified that many of the patients at Planned Parenthood were referred by other private physicians, indicating that the woman already has at the very least a basic understanding of her situation and the decisions now before her. To mandate that she wait even longer insults the intelligence and decision-making capabilities of a woman [emphasis added].

Laws as a consequence of negative peer pressure

At the risk of putting ideas into the heads of conservative lawmakers, there are a number of other laws that the Tennessee Supreme Court did not consider in Planned Parenthood v. Sundquist, but that are being enacted with some regularity across the United States.  With all the bad examples around that our impressionable, young representatives and senators might choose to follow, one worries that passage of Amendment One would embolden the State Legislature to not only re-institute old laws, but introduce new ones to further restrict abortion access (“because all the cool states are doing it”).

“Private insurance plans cannot cover abortions.”

Many states have some form of restriction on insurance coverage for abortion. It is uncommon for Medicaid to cover abortion, as mentioned earlier, and already in Tennessee, insurance plans from the healthcare exchange (established by the Affordable Care Act) may not cover abortion–not even in cases of rape, incest, or in order to save the life of the mother. However, these restrictions could extend even further–to public employees’ insurance plans or even private insurers, as they do in nineteen and nine other states, respectively.

“Doctors performing abortions must be OB/GYN certified.”

Mississippi requires that doctors performing abortions are OB/GYN certified with no medical justification. With a fairly limited number of doctors available to provide services already, introducing new requirements only serves to further reduce the number of qualified physicians, and consequently, women’s ability to find the services that they need, close to home.

“Patients must be told that abortion increases the risk for breast cancer and negative psychological after-effects, and that it causes pain to the fetus.”

Tennessee already has informed consent laws which require that clinics inform patients, among other things, that abortion “in a considerable number of cases constitutes a major surgical procedure.” However, some states go further: five states require providers to inform patients that abortion may increase a woman’s risk for breast cancer; eight states require providers to tell patients that they may experience negative psychological effects post-abortion; and twelve states require that patients be informed that the fetus may experience pain during the procedure. This is in spite of the best evidence available, which suggests: that abortion has “no overall effect on the risk of breast cancer;” that “the relative risk of mental health problems is no greater” when a woman chooses abortion; and that the jury is still out on the question of fetal pain as the experts continue to debate.

But what’s most worrisome about Amendment One is not the laws that the Court struck down in Sundquist or the laws that legislators are passing all around us. The most worrisome part is that . . .

We don’t know what they will do, and they won’t tell us.

Here’s Stacey Campfield, Tennessee Senator from the 7th District (Knox County) speaking to the Family Action Council of Tennessee:

After [Amendment One] passes, I have several ideas but for fear of those ideas being used to help defeat Amendment 1, I will refrain from talking about those at this time. I doubt there are any ideas I would oppose that would restrict abortion in Tennessee.

Some of my Facebook friends are concerned that he might actually be planning to propose this new law.

So what do we do?

The good news: A recent Vanderbilt University poll suggests that–even while 45% of Tennesseans identify as “somewhat” or ” definitely pro-life”–71% of Tennesseans oppose Amendment One. This thing can be beat.

The bad news: Only 55% of Tennesseans turn out for midterms, young people are less likely to vote than older people, and Republicans may be more enthusiastic voters than Democrats in midterm elections. This could spell trouble for Tennessee in 2014.

The reference to representative democracy in the text of Amendment One is particularly ironic considering the shocking difference between the public opinion poll done by Vanderbilt and the margins by which Amendment One was approved in the Tennessee House and Senate. How representative is the democracy in Tennessee, really?

A stark contrast. Votes taken in the Senate and the House (where about 3/4 of legislators were in favor) are almost a reverse image of a recent poll of voters (nearly 3/4 of whom opposed).

The image above seem to suggest that our representative democracy is not very representative. Maybe it’s not the best idea to start handing them the power to make our decisions, and it’s always a good time to get out and make your voice heard.

1. Get your voter registration in order now.

Click here to view and print a Tennessee voter registration form, either to register for the first time or to update your contact information with the Election Commission. You must postmark or hand-deliver this form to your local election commission it by October 4 in order to be eligible to vote in the general election this year. “If you register by mail, you must vote in person the first time you vote after registering,” so if you will need to vote by absentee ballot this year, it’s important to hand-deliver it.

If you’ve registered before not sure if your information it up-to-date, just turn in another form to be sure!

If you’re sure you’re registered,

2. Remember to vote on November 4th.

And also,

3. Make sure your friends and family are voting.

I plan on printing forms for everybody in my household (we moved recently) and taking a family trip to the election commission when I visit home in a few weeks. The car trip will also be a good opportunity to . . .

4. Help people you know understand what Amendment One means for Tennesseans.

Legislators have written the amendment in a way that might be confusing to someone encountering it for the first time (e.g., “the people retain the power,” or possibly reading “including” as “excluding” rape/incest/health of the mother).

And, as mentioned above, some of the legislation could result from the passage of Amendment One might seem pretty reasonable on the surface–laws like this are frequently (and disingenuously) marketed by the anti-choice movement as “common sense” regulations or “reasonable restrictions” meant to “protect women.” They’re not. Challenge these this language if you hear it, and help friends and relatives if they have questions.

Share articles, engage in Facebook conversations, write your own blog post . . . if everyone held themselves accountable for getting just five votes to the polls this November, we could beat this thing soundly.

Finally, you could always . . .

5. Make a donation or volunteer with Vote No on One Tennessee.

Now’s a good time to mention that I’m not a lawyer, or even a law student, or a legislator, or a doctor, and I’m certainly not authoritative. I’ve interpreted the law to the best of my ability and I’ve tried to cite credible sources for any factual assertions. I would be really grateful for feedback on this (negative or positive), including any sources you might like to share with me or any arguments you think I’ve overlooked. If you know of anywhere I should share this article, let me know, and if you want to share it, please do!

Thanks for reading!

 

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1.  Planned Parenthood v. Sundquist, 38 S.W.3d 1, 2 (Tenn. 2000). ↩
2. The Court analyzed each of the abortion statutes under strict scrutiny, according to its conclusion that the Tennessee Constitution offered more protection than the Federal Constitution (as interpreted in Planned Parenthood v. Casey). Should Amendment One pass, the Court’s strict scrutiny review would be invalidated. However, the Court also analyzed each statute discussed here using intermediate scrutiny (the less rigorous, Federal standard established by Casey) and determined that they still did not pass muster. I allude to this lower standard of review a few times in this article, but do not make a clear distinction between the two types of review, for simplicity and brevity. It is important to note, however, because while Amendment One would establish that “nothing in [the Tennessee] Constitution secures or protects the right to abortion,” it would not effect the Federal standard of review. Therefore, the parts of the Court’s 2000 review that were done according to intermediate scrutiny (the less rigorous, Federal standard established by Casey) may be enough to keep the statutes discussed here from being re-instituted even in the event that Amendment One passes. ↩
3. The analysis of the second trimester hospitalization requirement (Tenn. Code Ann. § 39-15-201) begins on page 18 of the opinion. Id. at 18. ↩
4. “Substantial evidence was introduced at trial to indicate that abortions can be performed safely outside the hospital setting through at least the first eighteen weeks of pregnancy. American College of Obstetricians and Gynecologists, Standards for Obstetric-Gynecologic Services (7th ed. 1989)” Id. at 18. ↩
5.  Id. ↩
6.  Id. at 19. ↩
7. Analysis of the physician-only counseling requirement (Tenn. Code Ann. § 39-15-202 (b)-(c)) begins on page 21 of the opinion. Id. at 21. ↩
8.  Id. at 22. ↩
9.  Id. ↩
10.  Analysis of the mandatory waiting period requirement (Tenn. Code Ann. § 39-15-202 (d)(1)) begins on page 22 of the opinion. Id. ↩
11. “The State suggests that nothing in the statute prevents the attending physician from informing the woman of the required information over the telephone . . .  this interpretation disregards the plain language contained in Tenn. Code Ann. § 39-15-202(d)(1) . . .” Id. at 21. ↩
12.  Id. at 23. ↩
13.  Id. ↩
14.  Id. at 23-24. ↩
15.  Id. at 23. ↩

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