By TIM SINIARD
Tennessee State Sen. Todd Gardenhire (R-Chattanooga) told members of the Rotary Club of Cleveland that state pro-life groups remain split regarding the course of action they should take to legally defend a bill that bans abortions.
He spoke during the luncheon last week at the Museum Center.
“They’re divided,” Gardenhire said. “They all want to get something done, but nothing is going to get done for at least two years.”
While the state may eventually pass legislation banning abortion, the resulting legal challenges to the law will most likely take up to 10 years to resolve, Gardenhire said.
For now, Tennessee legislators must determine a way to write an ironclad law that will pass muster under challenges all the way to the United States Supreme Court.
Referred as a “conception bill,” the legislation seeks to ban abortion from the time a woman knows she is pregnant.
The issue dividing the anti-abortion contingent centers on two constitutional perspectives. During a series of hearings held by the Tennessee Senate Judiciary Committee in Nashville last month, some advocated basing legal strategy on the Ninth Amendment to the United States Constitution, which states “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
During the hearings, Faulkner University Professor Adam MacCleod told committee members that abortion could be overturned via the Ninth Amendment, which established the “common law rights of everyone.”
However, Jim Bopp, an attorney for the National Right to Life Committee, urged lawmakers to reconsider. While the group advocates against abortion but does not support Tennessee’s measure, claiming the Supreme Court will decline to hear the case based on precedent.
Bopp said the bill’s language defining viability so early in a pregnancy was “irrational.”
“It makes us look foolish,” he said. “And I do not want to look foolish.”
“We have precedent we cannot avoid,” Bopp said of the Ninth Amendment tactic. “There is no clever argument that can change that.”
Additionally, Bopp said it is highly unlikely the Supreme Court will do away with Roe v. Wade in one fell swoop, ignoring decades of precedent.
“The first thing about the Supreme Court is that there is nothing you can do to force them to do anything,” Bopp said. “They are in control of the docket.”
He did warn if a legal challenge prohibiting abortion did reach the high court, abortion opponents would run the risk of the court voting against prohibition.
Instead, Bopp advocated an incremental approach.
“It took decades to overturn Plessy v. Ferguson,” Bopp said. “They had to raise new issues the courts had not considered and these were cases the courts chose to accept.”
The Plessy decision, which was handed down by the Supreme Court in 1896, was overturned by Brown v. Board of Education in 1954.
In that landmark case, timing was everything.
“The Supreme Court waited until they had the vote of every justice before they overturned it,” Bopp said.
Gardenhire told the Cleveland Daily Banner that state legislators must decide on a strategy.
“The issue is which way is the best way to go? The Ninth Amendment has never been tested in court,” he said.
Even if the abortion bill is passed, Gardenhire said the American Civil Liberties Union will immediately mount a swift counter attack.
“The ACLU will file a petition in court and block it from happening until it works its way up to the Supreme Court, which could take 10 years,” Gardenhire told the Banner. “All these babies are going to be dying. People are going to be killing them anyway; we can’t stop it. No matter which view we take with all this, we’ve got to go through the Supreme Court.”