Legislators should revisit Tennessee’s abortion law | Opinion

Few issues in recent American history have been as contentious as abortion. For the last 50 years it has divided Americans along party lines and damaged the reputation and, to many, the legitimacy of the Supreme Court, whose members had articulated a constitutional right that was later withdrawn.

The contention has now shifted from Washington to state capitols. including Nashville, While the Tennessee General Assembly has made clear its anti-abortion rights-commitment, the legal status of abortion merits serious reexamination.

Control taken from the states and given back

In 1973, the Supreme Court, in Roe v. Wade, ruled that abortion was included under a constitutional right of privacy that states could not deny. Until this ruling, states had been fully in control. Following Roe, states retained some agency but could not totally outlaw abortion. The 1992 Casey decision gave states more leeway but did not overturn the basic tenets of Roe. Many state legislatures continued to push the envelope by disallowing abortion beyond an ever fewer number of weeks.

The Dobbs decision earlier this year reversed Roe and completed the handoff of authority to the states. So it’s back to politics and governing in 50 state systems These systems reflect different political cultures. Illinois allows abortions until the 24th week of pregnancy. Other states disallow virtually all abortions at any time.

Thirteen states, including Tennessee, had passed “trigger bans” in anticipation of the overthrow of Roe. Many states continued protections for the life of the mother. Others also included exceptions for incest and rape. Tennessee’s is among the most stringent, with no exception for rape and incest, and with provisions that allow a physician to perform an abortion to save the life of the mother, but only after taking on the burden of proof that the action was necessary,

Tennessee’s present abortion law did not come into being through the usual pathway. It was anticipatory, without certainty that it would ever take effect. Now it is a reality that creates major problems for women in critical situations, as well as the physicians who treat them.

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State legislatures whose members waited to address the laws when the decision was made, instead of making action contingent on a possible decision, made the more responsible legislative choice. Then the practical realities around threats to the life of the mother and forcing rape and incest victims to carry their pregnancies to term could be fully debated. Certainty provides focus that hypotheticals often lack.

Physicians and women's health at risk

The present Tennessee law puts physicians at risk of committing a Class C Felony, having to later mount an affirmative defense to prove they acted with sufficient proof that the life of the mother was indeed threatened. This “guilty until proven innocent” law threatens physicians’ ability to provide the best health care for their patients. This threat is endangering women's lives.

There is scant evidence the majority of Tennesseans want such draconian laws. In 2014, 52.6% of voters narrowly approved removing language that provided abortion rights from the state Constitution. That vote was cast with the backdrop of Roe v. Wade protections. Last month, a Vanderbilt poll reported that 75% of Tennesseans, including majorities of Republicans, believed that abortion should be legal if the result of rape or incest.

The preponderance of the evidence is that Tennesseans are slightly anti-abortion rights overall. The public policy that best reflects public opinion is likely a strict time limit within which women can seek an abortion without cause, along with exceptions for rape, incest and the life of the mother, without putting medical professionals in impossible situations.

The first is not at all likely. But the latter two should be achievable without forcing conservative legislators to abandon their pro-life commitments.

All indications point to the General Assembly’s revisiting the issue in the upcoming session. Party politics and vocal national interest groups with scorecards in hand will make change difficult. But they should not prevent serious rethinking of the overly harsh present law.

William Lyons is Director of Policy Partnerships for the Howard Baker Jr. Center for Public Policy and Professor Emeritus of Political Science at the University of Tennessee. He also served as Chief Policy Officer for Knoxville Mayors Bill Haslam, Daniel Brown and Madeline Rogero.

The views and opinions expressed are those of the author and do not necessarily reflect the official policy or position of the Howard Baker Jr. Center for Public Policy or the University of Tennessee.

This article originally appeared on Knoxville News Sentinel: Opinion: Legislators should revisit Tennessee’s abortion law