This Bizarre Abortion Fight Has Progressives ‘Extremely Concerned’

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October 20, 2014 6:00 a.m.

On Election Day, Tennessee voters will be asked to do something very unusual: Amend the state constitution to eliminate all protections for abortion, including in cases of rape, incest and when a woman’s life is in danger.

The ballot initiative “Amendment 1” is the culmination of more than a decade of plotting by anti-abortion advocates, who are finally ready to strike. It says:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

The amendment itself doesn’t impose a new law, so it cannot be challenged in federal court. But it wipes out all state protections for abortion, paving the way for Tennessee Republicans — who control the governor’s mansion and enjoy massive majorities in the legislature — to enact restrictive abortion laws.

“We’re extremely concerned,” said Steven Hershkowitz, spokesman for Vote No On 1, the campaign committee opposing the measure. “This is a historically dangerous amendment in that it seeks to strip away a specific right of privacy out of the state constitution. We haven’t seen a whole lot of that.”

Sharon White, spokeswoman for the Yes On 1 campaign, told the local ABC affiliate that supporters of the amendment are simply “saying yes to making the constitution once again neutral on the issue of abortion.”

If the Tennessee amendment passes and leads to a state law banning abortion, legal experts say that’s certain to spark a federal lawsuit, as it would contradict Roe v. Wade and subsequent U.S. Supreme Court rulings protecting abortion rights in certain cases, which states are required to abide by.

“It’s certainly one of the most consequential abortion fights” playing out across the country, said Elizabeth Nash of the Guttmacher Institute, a reproductive rights and research group. “There would be a huge change in the legal landscape in Tennessee if it does become law.”

The battle has infused millions of dollars in spending from national groups, Hershkowitz said. The major organizations fighting the amendment are ACLU and Planned Parenthood, and the top group fighting for it is National Right To Life. There’s no reliable polling on the ballot measure, but one recent survey by the Family Research Council, a social conservative group, found that 50 percent of Tennesseans support the amendment, while fewer than one quarter oppose it and a quarter have not decided, according to Nashville Public Radio.

The fight dates back to a 2000 ruling by the state supreme court in Planned Parenthood v. Sundquist which gave Tennessee broader abortion-rights protections than the federal government imposes. The justices said that “a woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.” That has prevented Tennessee from passing some of the most restrictive laws that other conservative states have adopted, such as informed consent and mandatory waiting periods.

“The Tennessee Supreme Court interpreted our Constitution to protect abortion rights more broadly than the U.S. Constitution,” said Brian Fitzpatrick, a professor at Vanderbilt University Law School. “As a result, we cannot enact the same regulations of abortion that other states can and have become a magnet for abortion tourism. So long as the Supreme Court does not overrule Roe [v. Wade], all the amendment does is enable the legislature to enact the same regulations as other states.”

Proponents and opponents of the ballot measure have escalated their campaigns with the initiation of early voting in Tennessee last week.

Asked if there’s a legitimate fear among abortion-rights advocates that the ballot measure with pass, Nash of Guttmacher responded, “I think there is.”

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