After failure of heartbeat abortion bill, focus in Tennessee turns to 'trigger' law

While a GOP-effort to enact an abortion heartbeat bill failed last week, anti-abortion lawmakers have refocused their efforts to enact a "trigger" bill that would ban abortions in Tennessee should the Supreme Court alter or overturn the landmark Roe v. Wade decision.

The trigger bill, formally known as the "Human Life Protection Act," had taken a back seat in the General Assembly to the heartbeat bill, which would have banned abortions after a fetal heartbeat could be detected — typically about six weeks into a pregnancy. 

But even as the heartbeat bill gained traction, including the support of Gov. Bill Lee, some lawmakers grew cautious about the certain legal challenges — and the high costs — that would follow. The heartbeat measure has been deferred to a summer study session, effectively killing the bill this year.

On Tuesday, a majority of the House health committee voted in favor of the trigger bill, sending it to the House Finance, Ways and Means committee, which is scheduled to meet Wednesday.

Tennessee is one of four states considering trigger bills this year. The other states are Missouri, Ohio, Oklahoma and Texas. 

Six states currently have trigger laws. They include Louisiana, Mississippi, North Dakota and South Dakota, which have long had such laws in place. Kentucky and Arkansas passed their version of trigger laws this year.

Brian Harris, president of Tennessee Right to Life — the key proponent of the measure  — said it is part of a strategy of "focusing on policies that stand the strongest chance of being upheld as constitutional and enforceable."

The trigger law, he said, stands that chance.

Advocates for abortion rights, however, said Tuesday that the law would face legal challenges. 

A statement from Planned Parenthood of Tennessee and North Mississippi called the measure "blatantly unconstitutional."

"If these trigger laws go into effect, they will be challenged," the statement said. 

If enacted, the consequences for women seeking abortions would be "dire," the statement said.

"Banning abortion does not eliminate abortion, it just makes it less safe and puts pregnant women and their families at risk."

The U.S. Supreme Court is not currently considering a challenge to Roe v. Wade, which established abortion as a right in 1972. But with dozens of challenges to abortion restrictions winding their way through courts across the country, the state's highest court could have the chance to revisit the ruling at any time. 

What the measure would do

The trigger bill, sponsored by Rep. Susan Lynn, R-Mount Juliet and Sen. Dolores Gresham, R-Somerville, would tee up an automatic abortion ban in Tennessee should the Supreme Court overturn Roe in whole or part. 

The measure would create one exception to the ban: when an abortion is necessary to prevent death or "substantial and irreversible impairment of major bodily function." 

If enacted, the measure would make it a felony for a doctor to perform an abortion, while women seeking abortions would be exempt from prosecution.

It would be up to doctors to prove the abortion was necessary to prevent a woman's death as part of an "affirmative defense to prosecution." A physician performing an abortion would also have to prove that he or she had made a best-faith effort to deliver a live infant.

On Tuesday, lawmakers on the Senate Health committee approved an amendment that outlines the steps to be taken after any action by the Supreme Court. 

First the Attorney General would notify the Tennessee Code Commission, responsible for the official compilation of the statutes, codes, and laws of the state.

Then, within 30 days of that notice, the state would officially have an abortion ban in place. 

Larry Miller, D-Memphis, questioned whether the attorney general had weighed in on whether the bill could stand up to a constitutional challenge.

The office of Attorney General Herbert Slatery has not issued a formal opinion.

Will Brewer, legal counsel for Tennessee Right to Life, said a representative from the office was actively involved in a meeting to discuss how best to draft the amendment approved Tuesday outlining the steps taken to put the measure in place should the high court act. 

"We know today many of us have a longing to restore Tennessee to pre-1972," Lynn said, shortly before the measure received a majority vote advancing the bill. 

Want to read more stories like this? A Tennessean subscription gets you unlimited access to all the latest politics news, podcasts like Grand Divisions, plus newsletters, a personalized mobile experience and the ability to tap into stories, photos and videos from throughout the USA TODAY Network's 109 local sites.

Reach Anita Wadhwani at awadhwani@tennessean.com, 615-259-8092 or on Twitter @AnitaWadhwani.