"Are You REALLY Pro-Life?" Don't miss this short video!
Now the REAL WORK begins. EVERYONE needs to do their part to see that when the long awaited vote comes in November 2014, that we leave no stone unturned to complete the long years of hard work of neutralizing our State Constitution on the issue of abortion. Be on the lookout for the "YES on 1" Campaign.
2011 -- the Battle for SJR127 was once again engaged. This proposed amendment to the State Constitution must pass this year by a 2/3s vote in each house in order for it to go on the ballot for a vote of the people in 2014. At that time it must receive 50 percent +1 of the votes cast in that Governor's race to become a part of our Constitution. This year Sen. Mae Beavers, R-Mt. Juliet, was the primary senate sponsor, Rep. Debra Maggart, R-Hendersonville was the house sponsor.
** VICTORY IS EVEN SWEETER - 2011**
More than a decade after the Tennessee Supreme Court issued a wrong and radical ruling claiming a 'fundamental' right to abortion in the Tennessee Constitution, bi-partisan super majorities in the General Assembly have sent the matter for Tennesseans to decide in a public vote during the next governor's election in 2014
As required for every proposed amendment to the state Constitution, SJR 127 passed for the first time in 2009 by votes of 77-21 in the state House and 23-9 in the state Senate. Requirement for super-majority during second passage was achieved in 2011 by votes of 76-18 in the state House and 24-8 in the state Senate.
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.
As written the proposed amendment does not criminalize abortion but overturns the Court's pro-abortion ruling, returns the Tennessee Constitution to a position of neutrality on abortion and allows the people of the state and their elected legislators to again enact meaningful protections for women and unborn children in our state.
** VICTORY IS SWEET- 2009**
After many years of very hard work by thousands of people who had seen in previous years this amendment pass in the Senate multiple times only to be defeated in the House multiple times, on May 18,2009, history was made when SJR 127 passed on the House Floor 77-21. Go HERE for all the details. This was a very sweet victory, but now we must prepare to come back in the 107th General Assembly in 2011 to pass it again. The excellent outcome of the 2010 election greatly enhances the efforts of the pro-life community as we seek to overturn the 2000 State Supreme Court decision which found some common-sense regulatory laws unconstitutional.
SJR 127 will be brought back this year for its second time where a 2/3s vote in both houses is required for it to be placed on the Gubernatorial ballot in 2014.
You are urged to view the brilliant testimony of Paul Linton, Esq., an expert in abortion and State Constitutions, to the Health and Human Resources Committee. Every supporter, layman and legislator should consider this 'required training' for understanding this issue. Go HERE to view.
Adds new provision to Article I to provide that nothing in Constitution of Tennessee secures or protects right to abortion or requires the funding of an abortion; states that 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.
SJR 127 has passed the State Senate 24-8and is expected to be in the House Public Health Subcommittee on April 7.
The subcommittee was bypassed and SJR 127 was presented by Rep. Debra Maggart (R-Hendersonville) and Rep. Charles Curtis (D-Sparta) in the full House Health and Human Resource Committee on April 7th where it passed 20-7. Similar proposed Constitutional amendments have passed the Senate four times only to be defeated in a subcommittee in the House. However this time the proposal finally received a full committee vote. God-incidently, it was Pro-life Ladies day on the hill so many attendees were on hand to witness this HISTORIC day.
Voting aye were: Curt Cobb(D-Shelbyville), Jim Cobb (R-Spring City), Charlie Curtiss (D-Sparta), Vince Dean (R-East Ridge), John DeBerry (D-Memphis), Vance Dennis (R-Savannah), Josh Evans (R-Greenbrier),Dennis Ferguson (D-Harriman), Dale Ford (R-Jonesboro), Curtis Halford (R-Dyer), Michael Harrison (R-Rogersville), Joey Hensley (R-Hohenwald) , Debra Maggart (R-Hendersonville), Jason Mumpower (R-Bristol), Bob Ramsey (R-Maryville), Barrett Rich (R-Eads), David Shepard (D-Dickson), Tony Shipley (R-Kingsport), Mike Turner (D-Nashville), Speaker Kent Williams (Butler)-- 20.
Please go HERE and THANK these members for casting a pro-life vote.
Voting no were: Joe Armstrong (D-Knoxville), Lois DeBerry (D-Memphis), Joanne Favors (D-Chattanooga), Sherry Jones (D-Nashville), Gary Odom (D-Nashville), Mary Pruitt (D-Nashville), Jeanne Richardson (D-Memphis) -- 7.
It still has a few more stops to make so be sure and continue the make those important contacts.
UPDATE: SJR 127 Passed out of the House Budget Subcommittee on April 29th by a voice vote and will be in House Finance May 6th.Representatives Armstrong, Naifeh, Shaw, Tindell requested to be recorded as voting No.
SJR0127 by Black - HOUSE FINANCE, WAYS & MEANS COMMITTEE: Recommended for passage w/amendments- refer to: Calendar & Rules Committee 5/5/2009
Voice Vote - Ayes Prevail Rep.(s) Brown, Naifeh, Shaw, Sontany requested to be recorded as voting No
SJR0127 by Black - HOUSE CALENDAR & RULES COMMITTEE: Recommended for passage - refer to: House Regular Calendar (1) 5/7/2009
Voice Vote - Ayes Prevail Rep.(s) Armstrrong, L. Deberry requested to be recorded as voting No
Testimony of Paul Benjamin Linton, Esq.,
in support of House Joint Resolutions 66, 88 and 127
and in opposition to House Joint Resolution 61
before the Health & Human Resources Committee
Tennessee House of Representatives
March 11, 2009
Mr. Chairman, Members of the Committee: I appreciate the opportunity to appear
before your Committee today and offer testimony in favor of House Joint Resolutions 66, 88 and 127, and in opposition to House Joint Resolution 61. Before getting into the substance of my remarks, I would like to discuss my qualifications to testify on the legal and constitutional issues presented by these resolutions. I have been a practicing attorney for thirty-five years. I have represented parties, intervenors and friends-of-the-court in The United States Supreme Court, the federal courts of appeals and almost one-half of the state reviewing courts in the United States. These cases covered a broad spectrum of state and federal constitutional issues and included landmark decisions of the Supreme Court in the areas of abortion regulation (Webster v. Reproductive Health Services, Planned Parenthood v. Casey, Ayotte v. Planned Parenthood of Northern New England, Stenberg v. Carhart, Gonzales v. Carhart, Gonzales v. Planned Parenthood Federation of America), the right to refuse unwanted medical treatment (Cruzan v. Missouri Dep’t of Health), assisted suicide (Washington v. Glucksberg, Vacco v. Quill and Gonzales v. Oregon) and regulatory compliance. In Planned Parenthood of Middle Tennessee v.
Sundquist, 38 S.W.3d 1 (Tenn. 2000), which is the subject of HJR 66, 88 and 126, I represented eleven Members of the Tennessee Senate and twenty-one Members of the House as friends-of-the-court in support of the defendants.
In addition to my litigation work, I’ve testified in legislative committees in ten
States, including a Subcommittee of this Committee in April 2002, and have consulted onState legislation, as well as constitutional amendments, in most of the States. I’vepublished a dozen law review articles on a variety of subjects, including state and federal Constitutional law. Last August, I published the first comprehensive analysis of abortionas a state constitutional right, entitled ABORTION UNDER STATE CONSTITUTIONS A Stateby- State Analysis (Carolina Academic Press 2008). With this background in mind, let me turn to my analysis.
HJR 66, HJR 88 and HJR 127
HJR 66, 88 and 127 are intended to overturn the Tennessee Supreme Court’s
decision in Planned Parenthood of Middle Tennessee v. Sundquist and to restore to the people, acting through their elected representatives and senators, their rightful authority to regulate the practice of abortion, all within federal constitutional limits. Sundquist was a seriously flawed decision–a decision that represented an unwarranted expansion of theTennessee Constitution to a subject that neither the framers nor the ratifiers of theConstitution ever contemplated.
In Sundquist, a majority of the Tennessee Supreme Court held that the state
constitution confers a fundamental right to abortion, a right that is even broader than the one recognized in Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthoodv. Casey, 505 U.S. 833 (1992). Sundquist, 38 S.W.3d at 10-15. Because of the nature ofthe right recognized in Sundquist, any regulation of abortion must satisfy the “strict scrutiny” standard of judicial review. Id. at 15-17. Under this standard, “it is the State’s burden to show that the regulation is justified by a compelling state interest and narrowly tailored to achieve that interest.” Id. at 18. A broad range of regulatory measures that would pass muster under the federal constitution would not meet the standard of review adopted in Sundquist, including laws requiring physicians to provide their patients with detailed informed consent and laws imposing short waiting periods, both of which were struck down in Sundquist, as well as laws prohibiting partial-birth abortions and regulating clinics that perform first-trimester abortions.1 In light of the Tennessee Supreme Court’s decision in Sundquist, at least some provisions of House Bills 436, 445 and 2204 would likely be held unconstitutional, particularly the waiting periods mandated by HB 445 and HB 2204, as well as the attempt in HB 436 to subject all physicians’ offices where abortions are performed to the requirements applicable to outpatient surgical treatment centers. Although the state supreme court has not yet been asked to consider the constitutionality of state laws mandating parental consent,2 and prohibiting public funding of abortion,3 those laws are also at risk under the standard of review adopted in Sundquist.
It should be noted that, unlike the state supreme court’s decision in Sundquist,
every other state reviewing court that has considered the validity of an informed consent statute under a state constitution has upheld the statute. The Supreme Courts of Florida, Indiana, Mississippi and Missouri, along with the Michigan and Ohio Courts of Appeals,have all rejected state constitutional challenges to their informed consent statutes.4 Thesechallenges were rejected even though in three of these States– Florida, Mississippi andOhio–the court has recognized (in the same or an earlier case) an independent stateconstitutional right to abortion. The decision in Sundquist is an anomaly. Since theSupreme Court decided Planned Parenthood v. Casey almost seventeen years ago, nofinal decision of any state or federal court, other than the Tennessee Supreme Court, has struck down an informed consent statute on state or federal constitutional grounds. In addition to the state challenges I’ve already mentioned, federal challenges to statutes
mandating informed consent and waiting periods have been rejected in Indiana,
Kentucky, Mississippi, North Dakota, Ohio, Pennsylvania, South Dakota, Utah and Wisconsin.5 A decision of a state court that finds no support in the jurisprudence of the United States Supreme Court, the lower federal courts or any other state court in thecountry should give one pause.
In his eloquent and scholarly dissent, Justice Barker commented on the extreme
nature of the majority’s decision in Sundquist:
“Plainly stated, the effect of the Court’s holding today is to remove
from the people all power, except by constitutional amendment, to enact
reasonable regulations of abortion. Rather than leaving policy decisions
regarding reasonable regulation to the General Assembly, this Court has
converted itself into a roving constitutional convention, which sees itself
free to strike down the duly enacted laws of the legislature for no other
reason that it feels they are burdensome and unwise. In so doing, the Court
has been unable to convincingly point to any textual or historical basis for
its decision, and its holding that our Constitution provides greater protection
for the judicially created right of privacy than the federal Constitution is
contrary to nearly two hundred years of legal precedent.”
38 S.W.3d at 39-40 (Barker, J., concurring in part and dissenting in part). By virtue of its decision, “the Court has elevated one extreme of this debate to a constitutional level andhas made any meaningful compromise on this issue all but impossible.” Id. at 25. Themajority opinion “effectively removes from the General Assembly any power to reach areasonable compromise that considers all of the important interests involved.” Id.
Given the unwarranted expansion of abortion rights announced in Sundquist, whatis the proper remedy? Quite obviously, it is a constitutional amendment. There isnothing radical or unusual in proposing such an amendment. Indeed, in Sundquist, theTennessee Supreme Court itself said that “expressly limiting the substantive scope of theinterests comprising the right to privacy . . . is best left to constitutional amendment orinterpretation of individual cases.” 38 S.W.3d at 11 (emphasis supplied).
In Tennessee, as in the rest of the country, political power is ultimately derived
from the people. The first eight words of the Tennessee Constitution declare: “That allpower is inherent in the people, . . . .” TENN. CONST. art. I, § 1. If the people of a Stateshould determine that their state constitution has been misinterpreted by their courts, oreven if they simply disagree with a court interpretation of the state constitution, they areentitled to amend the constitution to reflect their will. In a democracy, the people, notjudges, have the final word.
HJR 66, 88 and 127 would restore much needed balance to the Constitution of theState of Tennessee. It would allow the people, acting through their elected legislators, toenact reasonable abortion regulations, including informed consent and waiting periods, that are fully consistent with the United States Constitution as interpreted by the SupremeCourt. It would also protect existing laws mandating parental consent and restrictingpublic funding of abortion except to the extent that such funding is required by federallaw. Because HJR 66, 88 and 127 are substantially the same, I shall limit my discussionto HJR 127, with the understanding that my comments also apply to HJR 66 and 88.
The first sentence of HJR 127 provides: “Nothing in this Constitution secures or
protects a right to abortion or requires the funding of an abortion.” This sentence wouldoverturn the decision in Sundquist and make the state constitution “abortion neutral,” i.e., nothing in the state constitution would confer a right to abortion or require public funding of an abortion. It is important to note, however, that abortion would remain a protected right under the federal constitution. Moreover, by virtue of the State’s participation in the federal Medicaid program, under the current version of the Hyde Amendment, Tennessee would continue to pay for abortions in cases when the life of the mother was endangered and in cases when the pregnancy resulted from an act of rape or incest. That is required by state law and a decision of the Sixth Circuit Court of Appeals.6
The second sentence of HJR 127 provides: “The people retain the right through
their elected state representatives and state senators to enact, amend, or repeal statutesregarding abortion, including, but not limited to, circumstances of pregnancy resultingfrom rape or incest or when necessary to save the life of the mother.” The secondsentence of HJR 127 is essentially an amplification or elaboration, if you will, of the firstsentence, i.e., it makes it clear that it is for the people, acting through their electedrepresentatives and senators, to determine the manner and extent to which the practice of abortion shall be regulated in this State. It cannot be emphasized too strongly, however, that this authority could be exercised only within federal constitutional limits.In other words, nothing in HJR 127 would empower the State of Tennessee to prohibit or regulate abortion in violation of the federal constitution.
I would like to address some of the objections that have been raised to HJR 127
(and HJR 66 and 88). One objection is that the amendment itself would outlaw abortions in Tennessee. That is nonsense. Nothing in HJR 127 (or HJR 66 or 88) would make abortion criminal in any circumstances–it simply restores the authority of the people, acting through their representatives and senators, to legislate in this sensitive area.
A related objection is that the amendment would empower the legislature to outlawabortion. This objection is misleading and, under current federal constitutional doctrine, simply wrong. Under the Supremacy Clause of the United States Constitution,Tennessee, like all other States, is subject to the constraints imposed by the federalconstitution as interpreted by the United States Supreme Court. It goes without sayingthat an amendment to a state constitution cannot affect rights protected by the federalconstitution. That is basic constitutional law. Any attempt to prohibit abortion, at leastbefore viability, would run afoul of the Supreme Court’s abortion jurisprudence. Nothing in HJR 127 (or HJR 66 or 88) would empower the legislature to enact laws that wouldviolate the federal constitution. Even if Roe v. Wade, 410 U.S. 113 (1973), as modified
by Planned Parenthood v. Casey, 505 U.S. 833 (1992), were overruled, nothing in HJR127 (or HJR 66 or 88) would require the State of Tennessee to adopt any regulationsrelating to abortion, much less any prohibition of abortion. The language of HJR 127 is very clear on this. Even assuming that Roe is overruled, which is not foreseeable at thepresent time, abortion would remain legal for any reason before viability, and for virtually any reason after viability, in the absence of new legislation. And any such legislation the General Assembly might consider could permit abortions to be performed for a variety of reasons, including the life or health of the mother, rape, incest and other circumstances.
Another objection that has been raised is that once the state supreme court has
ruled on an issue of state constitutional law, the people should not attempt to overturn that ruling. But this objection fundamentally misperceives the respective roles of the judiciary and the people in a democracy. The people have the last say, not the judges. Courts make mistakes and, when those mistakes involve a misreading of the constitution, as the decision in Sundquist plainly does, they should be corrected by constitutional amendment.
To take but one example, involving abortion, when the Florida Supreme Court struckdown a parental notice law on state constitutional grounds,7 the state legislature promptly responded with an amendment which, once approved by the people in a referendum, overturned that decision.8 Other States have adopted constitutions (or constitutional amendments) that make their state constitutions “abortion neutral.” The due process and equal protection guarantee of the Rhode Island Constitution provides: “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.”9 And, with respect to the issue of abortion funding, other States have gone even further than HJR 127 does by amending their constitutions to prohibit public funding of abortion, except to save the life of the mother.10 HJR 127 merely permits the legislature to restrict public funding of abortion; it does not require the legislature to do so.
Finally, there is nothing unique about a state constitution being amended to restrictor even eliminate a state constitutional right or to forestall a state court from recognizing such a right. For example, after the California Supreme Court held that the State ofCalifornia was required to recognize same-sex marriages,11 the people of the State approved a citizen-sponsored initiative (Proposition 8) to overturn the result in that case.12
Although that initiative has been challenged,13 it is likely to be upheld. And more thanhalf of the States, including Tennessee,14 have amended their constitutions to preventtheir courts from requiring recognition of same-sex marriages. In a number of instances,including Alaska, Hawaii and Oregon, this was done while appeals were pending in theirsupreme courts seeking to force the States to recognize such marriages.15
In sum, HJR 127 (or HJR 66 or 88) is necessary to restore the appropriate
constitutional balance in Tennessee, to give back to the people their rightful authority, acting through their elected representatives and senators, to determine the extent to which abortion shall be regulated in the State of Tennessee, subject, of course, to federalconstitutional limits.
Now I would likely to address briefly HJR 61. HJR 61 provides: “Nothing in this
Constitution secures or protects a right to abortion or requires the funding of an abortion, except in cases involving rape, incest or health of the mother.” It should be immediately apparent that HJR 61 would enshrine abortion as an express right under the state constitution,16 something that no other State has done or, to my knowledge, has even contemplated doing. HJR 61 is objectionable on several grounds.
First, it would require public funding of abortion in circumstances not required by
either the federal constitution (rape, incest and health of the mother) or the current version of the Hyde Amendment (health of the mother).
Second, it would codify the Tennessee Supreme Court’s decision in Sundquist andpermanently deny the General Assembly any flexibility in determining whether and under what circumstances abortions for rape, incest and the health of the mother should be allowed in the event Roe v. Wade is overruled. Moreover, even with respect to themandated exceptions for rape and incest, the language of HRJ 61 does not, by its terms,allow the State to require that the rape or incest be reported to the proper authorities.17
As a consequence, HJR 61 could prevent the State from discovering the perpetrator incircumstances when rape or incest has occurred and in detecting false claims of either.
Third, by employing undefined terms–rape, incest, health of the mother–HJR 61
would confer on state courts, not the state legislature, the power to determine whatconstitutes “rape,” “incest” or “health of the mother.” Conferring such power on thecourts is particularly troublesome with respect to the “health” exception that would bemandated by HJR 61. The Supreme Court has given an extremely broad reading to theterm “health” in the abortion context. In Doe v. Bolton, 410 U.S. 179 (1973), thecompanion case to Roe v. Wade, the Court held that whether an abortion is “necessary” is a matter for professional judgment that “may be exercised in the light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the wellbeing of the patient. All these factors may relate to health.” Id. at 192 (emphasis added).
A constitutional amendment that would mandate an undefined “health” exception
would probably be interpreted by the state supreme court to allow abortions in virtuallyall circumstances, including an abortion sought for the “mental health” of the woman.Mental health exceptions to abortion statutes were widely abused before Roe v. Wade was decided,18 and most likely would be abused if Roe were overruled and the issue ofabortion were returned to the States. HJR 61 should be rejected.
[Center for Women v. Knoll, 61 F.3d 170 (3d Cir. 1995). Similarly, if HJR 61 were adopted (andRoe were overruled), the Tennessee Supreme Court could hold that a reporting requirement wasnot authorized by the amendment and, therefore, could not be imposed as a condition of obtaining an abortion in cases of rape or incest.]
Let me briefly conclude. In Planned Parenthood of Middle Tennessee v. Sundquist, the Tennessee Supreme Court wrongfully usurped the rightful authority of the people of the State of Tennessee, acting through their duly-elected representatives and senators, to adopt reasonable regulations of abortion, consistent with the United States Constitution. That authority needs to be placed back in the hands of its rightful owners, the people. Either HRJ 66, HRJ 88 or HJR 127 would do precisely that. This Committee should act favorably on one of them. And, for the reasons previously stated, it should reject HJR 61.
I appreciate the Committee’s attention and would be pleased to answer any questions the Members may have.
1 In 2002, the Tennessee Court of Appeals struck down the legislature’s attempt to make
physicians who perform abortions in their offices comply with the regulations generally
applicable to outpatient surgical treatment centers Tennessee Dep’t of Health v. Boyle, Tennessee Court of Appeals at Nashville, No. M2001-01738-COA-R3-CV, filed Dec. 19, 2002. The court’s opinion strongly implied that such regulations could not be applied to first trimester abortions, which would have the effect of exempting from regulation not only physicians who perform occasional abortions in their private offices, but also outpatient clinics that specialize in performing first trimester abortions. Id. Slip Op. at 8-9.
2 TENN. CODE ANN. § 37-10-301 et seq.
3 Id. § 9-4-5116.
4 See State of Florida v. Presidential Women’s Center, 937 So.2d 114 (Fla. 2006); Clinic
for Women, Inc. v. Brizzi, 837 N.E.2d 973 (Ind. 2005); Mahaffey v. Attorney General, 564 N.W.2d 104 (Mich. Ct. App. 1997); Pro-Choice Mississippi v. Fordice, 716 So.2d 645 (Miss. 1998); Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 185 S.W.3d 685 (Mo. 2006); Preterm Cleveland v. Voinovich, 627 N.E.2d 570 (Ohio Ct. App. 1993).
5 See A Woman’s Choice-East Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir.
2002); Eubanks v. Schmidt, 126 F. Supp. 2d 451 (W.D. Ky. 2000); Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992); Fargo Women’s Health Organization v. Schafer, 18 F.3d 526 (8th Cir. 1994); Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995); Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724 (8th Cir. 2008); Utah Women’s Clinic, Inc. v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994), dismissed in part, reversed in part on other grounds and remanded, 75
6 Planned Parenthood Affiliates of Michigan v. 6 Engler, 73 F.3d 634 (6th Cir.
7 See North Florida Women’s Health & Counseling Services, Inc. v. State of Florida, 866
So.2d 612 (Fla. 2003).
8 See FLA. CONST. art. X, § 22 (West Supp. 2008).
9 R.I. CONST. art. I, § 2 (2004).
10 See ARK. CONST. AMEND. 68 (1988); COLO. CONST. art. V, § 50 9 (West 2001). Under the current version of the Hyde Amendment, these States are also required to pay the state portion of abortions performed on indigent women because their pregnancies resulted from an act or rape or incest. See Little Rock Family Planning Services, P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995), rev’d on other grounds, 516 U.S. 474 (1996); Hern v. Bye, 57 F.3d 906 (10th Cir. 1995).
11 See In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
12 Proposition 8, approved by the voters, November 4, 2008, codified at CALIF. CONST. art. I, § 7.5 (West Supp. 2008).
13 The California Supreme Court heard oral argument last Thursday, March 5th. The
principal challenge to Proposition 8 is that it constitutes a “revision” to the California
Constitution, which may be proposed only by the legislature, not an amendment, which may be proposed by a citizen-sponsored initiative. No such issue is presented by HJR 66, 88 or 127 because all three are legislatively proposed amendments–there is no initiative option in the Tennessee Constitution.
14 TENN. CONST. art. XI, § 18 (2007).
15 ALASKA CONST. art. I, § 25 (2006); HAW. CONST. art. I, § 22 (LexisNexis 2007); OR. CONST. art. XV, § 51 (2007). The lawsuits that were derailed by the amendments were Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, Feb. 27, 1998, 1998 WL 88743 (Alaska Superior Court); Baehr v. Miike, Civ. No. 91-1394, Dec. 3, 1996, 1996 WL 694235 (Hawaii Circuit Court); and Li v. State of Oregon, No. 0403-03057, April 20, 2004, 2004 WL 1258167 (Oregon Circuit Court).
16 Of course, there are a number of state 16 supreme courts, like the Tennessee Supreme
Court, that have recognized abortion as an implied right under their state constitution, but abortion rights language does not appear in the text of any state constitution.
17 In a related context, the Third Circuit Court of Appeals has held that, in the absence of
express language in the Hyde Amendment authorizing the States to require rape and incest to be reported, the Department of Health and Human Services could forbid the States from imposing a reporting as a condition of funding abortions for either reason. Elizabeth Blackwell Health
18 Prior to Roe, California adopted an abortion statute based on § 230.3 of the Model
Penal Code. The “Therapeutic Abortion Act,” enacted in 1967, allowed abortions to be
performed for physical or mental health reasons or when the pregnancy resulted from an act of rape or incest. CAL. HEALTH & SAFETY CODE § 25950 et seq. (West 1970). An abortion for “mental health” reasons was authorized if the pregnant woman “would be dangerous to herself or to the person or property of others or is in need of supervision or restraint.” Id. § 25951. Despite this narrow definition, essentially the same standard as for civil commitment, more than 60,000 abortions were performed in California in 1970, 98.2% of which were performed for mental health reasons. People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (citing state statistics). In Barksdale, the California Supreme Court expressed “[s]erious doubt . . . that such a considerable number of pregnant women could have been committed to a mental institution” as the result of
becoming pregnant. Id. The experience in California strongly suggests that mental health
exceptions in abortion statutes are inherently manipulable and subject to abuse. An undefined health exception, i.e., one not limited to physical health reasons, would also be subject to abuse.