Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review
Hidden beneath the midterm’s senatorial supremacy sway lay various states’ inconspicuous ballot measures. A couple received some attention, primarily initiatives regarding marijuana legalization and minimum wage increases. However, one sweeping amendment to the Tennessee Constitution, Amendment 1, has received very little attention outside of the state. The Amendment originated in response to a 2000 Tennessee Supreme Court ruling, Planned Parenthood v. Sundquist, which limited regulations the state legislature could impose on pregnancy prevention providers by subjecting the regulations to a strict scrutiny analysis. Now, after obtaining legislative approval twice and 53% voter approval, the Amendment is likely to be ratified and effectively overturn Sundquist, pending the dismissal of a suit alleging that the Amendment was not properly ratified.
From Conception: Planned Parenthood v. Sundquist
In Sundquist, the Tennessee Supreme Court struck down several regulations that placed limitations on a woman’s ability to terminate her pregnancy. In doing so, the court held, “[A] woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.” Further, the court acknowledged the U.S. Constitution’s right to privacy and noted that those rights afforded by the U.S. Constitution act as a floor for the rights afforded in the Tennessee Constitution. Thus, “the right is inherent in the concept of ordered liberty embodied in [the Tennessee Constitution] and is therefore fundamental.” “Accordingly, the statutes regulating this fundamental right must be subjected to strict scrutiny analysis.” As a result, none of the statutes were narrowly tailored to pass constitutional muster. In addition, the court dismissed the “undue burden” standard from Planned Parenthood v. Casey for being too subjective. However, the court proceeded to reason that even if the regulations were subjected to Casey’s “undue burden” standard, they would still fail to meet that standard.
As a result of Sundquist, many in the legislature thought that any statute they enacted that would attempt to regulate a woman’s right to terminate her pregnancy would fail under the court’s strict scrutiny analysis. In turn, the reluctance to enact regulations led proponents to believe that preventative pregnancy providers were running entirely unregulated. Thus, the legislature initiated the Amendment to resolve this discrepancy.
To Birth: Amendment 1
The Amendment provides, “Nothing in [the Tennessee] Constitution secures or protects a right to abortion.” Further, the legislature may “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 legislators alleged that the Amendment will still comply with the U.S. Constitution and, presumptively, be consistent with what is left of Roe’s original trimester and viability framework, Casey’s “undue burden” standard, and Gonzales’s mandated exception to provide for the health of the woman. The Amendment’s proponents alleged that Sundquist let pregnancy prevention providers operate without licensing or regulations, which led to a flood of women from fleeing to Tennessee to get a cheap and quick abortion. Despite heavy opposition from various groups, the Amendment passed by a considerably narrow 53-47% margin, primarily because of support from conservative groups and various religious leaders.
Although most of the issues with the Amendment surround the potentially limitless regulations the legislature may enact under it, the biggest issue with the Amendment is its explicit inclusion of “circumstances of pregnancy, resulting from rape or incest, or when necessary to save the life of the mother.” Instead of stopping at the provision that grants the legislature the authority to enact statutes regarding abortion, which is suspect on its own, the Amendment’s authors decided to overtly include these three circumstances. Although regulations for the former two circumstances have not explicitly been deemed unconstitutional, there are implicit public policy rationales opposing them. For one, there is an issue with the mental health of the mother living with her rapist’s child and the child potentially having some sort of sexually transmitted disease as a result of the rape. Similarly, there is an increased likelihood of physical or mental abnormalities for children conceived in incestuous relationships, and these relationships may also have abusive backgrounds, which relates to the same rationale opposing limitations on terminating pregnancies resulting from rape.
Unlike rape and incest regulations, the Supreme Court has explicitly invalidated regulations that prohibit abortions in circumstances where the health of the mother is in jeopardy in Roe, and has upheld this decision in Casey and Gonzales. Thus, should the Tennessee General Assembly attempt to pass regulations that prohibit abortions in instances where the mother’s life is at stake, they will be permissible under the Tennessee Constitution, but likely violate a consistently-held interpretation of the U.S. Constitution. In addition, given the legislature’s allegation that any regulations spawned from the Amendment will be in line with the U.S. Constitution, and because legislative history is a judicial canon of interpretation utilized by courts, such proposed regulations would likely not stand constitutional muster when evaluated in light of Amendment 1’s legislative intent to comply with the U.S. Constitution and Casey’s interpretation thereof.
Another suspect regulation the legislature could enact with the Amendment’s power is one that criminalizes attempted abortions, i.e., one that creates prison sentences for the woman and her abortion provider. In the event that a woman attempts to terminate the pregnancy and fails, imprisoning her would likely place an “undue burden” in the way of her ability to terminate the pregnancy. Although likely permissible under Amendment 1, this would be inconsistent with Casey’s interpretation of the U.S. Constitution’s right to privacy, and thus inconsistent with the legislative intent of the Amendment.
The problem that none of the proponents of Amendment 1 want to acknowledge is the likelihood that abortions will still happen in Tennessee regardless of the regulations enacted. However, the post-ratification methods used will be more dangerous to the health—or even the life—of the woman. In addition, if a woman avoids having an abortion due to the increased costs or likelihood of imprisonment, but then is incapable of providing for herself or the child, that simply jeopardizes both of their lives again.
Overall, even though Sundquist applied strict scrutiny, it acknowledged certain regulations that would not survive even Casey’s “subjective undue burden” standard. Amendment 1 will likely effectively repeal Sundquist’s strict scrutiny framework, but Casey’s application should still be effective, especially in light of the legislature’s intent to comply with the U.S. Constitution. Thus, if the state legislature enacts regulations concerning hospitalization requirements, informed consent, and waiting periods, they would not be subject to strict scrutiny, but would likely still fail to meet Casey’s “undue burden” standard, per Sundquist, regardless of the Amendment’s language.
After Amendment 1
The language of the Amendment provides endless possibilities for regulations the state legislature may enact that could effectively limit, if not prohibit, a woman’s ability to terminate her pregnancy. The drafters allege that any regulations spawned from the Amendment will comply with all federal rights afforded by the Constitution. However, given the conservative supermajority of the Tennessee General Assembly, one could wonder just how far it will try to push these limits. Although the strict scrutiny standard in Sundquist will arguably no longer exist in light of Amendment 1, the application of Casey’s undue burden standard to regulations per Sundquist will still have some meaning, since it is a federal Constitutional interpretation. Thus, given the legislature’s intent in proposing the law and the current state of federal Constitutional jurisprudence on abortion, regulations more burdensome than those at issue in Sundquist will not pass constitutional muster, even in post-Amendment 1 Tennessee.
 S.J. Res. 127, 106th Gen. Assemb. (Tenn. 2010).
 Planned Parenthood of Middle TN v. Sundquist, 38 S.W.3d 1 (2000).
 The Tennessee Constitution requires a two-thirds approval in two consecutive general assemblies prior to going on the ballot in a gubernatorial election year. Tenn. Const. art. XI, § 3.
 Ballot Measure Election Results 2014, Huffington Post, http://elections.huffingtonpost.com/2014/results/ballot-measures#TN-43705 (last visited Nov. 13, 2014).
 Art. XI, § 3 connotes that proposed amendments are ratified by “a majority of all the citizens of the state voting for governor,” which arguably means that votes for the Amendment only count if the voter also voted for governor. A lawsuit has been filed in federal court to dispute this provision, and would void any votes in violation of the provision. See Amendment 1 Opponents Sue, Want Vote Invalidated, The Tennessean (Nov. 7, 2014, 9:19 PM), http://www.tennessean.com/story/news/local/2014/11/07/amendment-opponents-sue-want-vote-invalidated/18684257/.
 Planned Parenthood of Middle TN v. Sundquist, 38 S.W.3d 1, 25 (2000). Regulations requiring hospitalization, a waiting period, and informed consent were all struck down for not being narrowly tailored to advance the government’s compelling interest.
 Id. at 4.
 See generally, U.S. Const., amend. IX. The right to privacy is not enumerated in the Constitution, but implicit in the penumbra of rights afforded by the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479 (1965).
 Sundquist, 38 S.W.3d at 4.
 Planned Parenthood v. Casey, 505 U.S. 883 (1992).
 Sundquist, 38 S.W.3d at 16-17.
 S.J. Res. 127, 106th Gen. Assemb. (Tenn. 2010).
 Roe v. Wade, 410 U.S. 913 (1973).
 Gonzales v. Carhart, 550 U.S. 124 (2007).
 See generally Yes on Amendment 1 Tennessee, supra note 12; Doug Counts, Pro-Life Clergy in Johnson City Gather in Support of Amendment 1, News Channel 11, (Oct. 29, 2014, 4:13 PM), http://www.wjhl.com/story/27156408/pro-life-clergy-gather-in-support-of-amendment-1.
 Hal Herzog, The Problem with Incest: Evolution, Morality, and the Politics of Abortion, Huffington Post, (Oct. 9, 2012, 3:06 PM), http://www.huffingtonpost.com/hal-herzog/the-problem-with-incest-e_b_1946901.html.
 See Mark Bellinger, Tennessee Lawmakers Convene 109th General Assembly, News Channel 5, (Jan. 12, 2015), http://www.jrn.com/newschannel5/news/politics/New-Session-Of-Tennessee-General-Assembly-Begins-Tuesday-288352301.html.