Roving Constitutional Convention

The Tennessee Supreme Court: Roving Constitutional Convention

Guest Columnist
Perspective: Times & Free Press Opinion
November 8, 2000

What is the point of having a written Constitution if the courts can amend it to suit their personal preferences and pleasure?  That’s a question many Tennesseans are asking following a recent decision by the Tennessee Supreme Court, which ruled that our state constitution provides a broader “right to abortion” than Roe vs. Wade.

Such a decision is troubling on a number of fronts.

Perhaps the most obvious cause for concern is the great length the court traveled in order to construct such a right into our founding document.  As dissenting Justice Mickey Barker wrote, “this Court has consciously decided to ignore two centuries of settled constitutional interpretation concerning the proper Scope of our Constitution…”

Secondly, in issuing its decision in Planned Parenthood of Middle Tennessee vs. Sundquist, the Court has removed from the People of Tennessee and the state Legislature the ability to civilly and rationally debate the most controversial question of our time.  Again quoting Justice Barker’s dissent, “Rather than leaving policy decisions regarding reasonable abortion regulation to the General Assembly, this Court has converted itself into a roving constitutional convention…”

But taken to its most basic and personal level, the Court has badly failed those whose cause it claimed to champion:  the thousands of women in Tennessee who face lonely and difficult decisions regarding their lives and those of their unborn children.  What were these challenged protections that Planned Parenthood and the Court found so objectionable?

Informed consent for women: This provision ensured that abortion clinics disclose the inherent risks of the abortion procedure consistent with the woman’s own medical diagnosis and history.  It insisted that a woman is given accurate information on the estimated gestational age of her unborn child and if he child was more than 24 weeks old, she was to be informed that it was capable of surviving outside the womb.

The state also mandated that the physician disclose information on the technique to be used and provide medical instructions for the woman to follow subsequent to the abortion.

Lastly, the woman was to be informed of public and private agencies and services available to assist her during her pregnancy.

Waiting period: Rather than allow for abortion on demand, the Legislature wisely instituted a two-day waiting period from the time a woman entered the abortion clinic to the time when the abortion was to be performed.  This enabled a women to consider her options before making such a life-changing decision at an emotional moment without all the medical facts.

Second trimester abortions:  Recognizing that life-threatening complications are possible for women undergoing later-term abortions, the Legislature mandated that abortions after the first trimester be performed in fully equipped and regulated hospitals rather than freestanding, outpatient clinic.  After all, health and safety for the women was supposed to be the intent of Roe vs. Wade.

It is clear that none of the challenged protections significantly limited abortion as a legal option for women in Tennessee.

The laws were not about prohibiting the practice of abortion.  Rather, they were the work on concerned Tennesseans and their legislators trying to find consensus in the rocky waters of abortion debate.

In today’s political environment where abortion clinics are allowed to operate in Tennessee without certification nor licensure, it seems all the more critical that basic, common sense protections such as informed consent, parental involvement and waiting periods be encouraged.

Such laws ensure that women are provided a minimum of information and protection.

The stricken laws also helped Tennesseans to restore come sense of balance following the complete stripping of the states’ pro-life laws in 1973.  As Justice Barker wrote, “I simply cannot fathom that the people of Tennessee, who outlawed the practice of abortion until Roe vs. Wade, intended to remove all power from themselves to enact reasonable regulations on abortion.”

With over 45,000 signatures, Tennesseans petitioned Gov. Sundquist and the court requesting that the protections for women be left intact.  Unfortunately, the court chose a different and profoundly partisan path guaranteed to escalate the already intense debate over abortion rights in Tennessee. The only difference now is that the discussion will move from the merits of popularly supported protections to the amendment of our state Constitution.  Every Tennessean could have hope fro more.

Cynthia M. Kedrowski is president of the Hamilton County Chapter of Tennessee Right to Life.