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Republican Attorney General Says Tennessee Abortion Ban is ‘Constitutionally Suspect’

A Republican attorney general says a Tennessee abortion ban may be illegal.

A Tennessee abortion ban attempts to limit women’s access to abortion.

A new Tennessee abortion ban bill prohibits abortion after 20 weeks. The bill, sponsored by Republican legislators, was roundly criticized by women’s rights groups. In testimony about the bill, one woman cried and called the bill “cruel.” Now, opponents of the bill are getting support from an unlikely source. Tennessee’s Republican attorney general, Herbert H. Slattery, III, has called the bill “constitutionally suspect.”


Tennessee Abortion Ban: An Unconstitutional Abortion Bill? 

The bill would prohibit abortion clinics in Tennessee from performing abortions past 20 weeks, unless a doctor asserted that the procedure was necessary to save the life of the mother. The bill provides no exception for rape, incest, or severe fetal defects. Some of the most serious birth defects can only be detected in the second trimester. That includes some diseases that are inevitably fatal. Thus the bill could force women to carry fetuses doomed to die.


Slattery argues that two pieces of the legislation may be illegal. The 9th Circuit Court of Appeals previously blocked a similar ban in Arizona. A second provision, which requires abortions after three months to take place in a hospital, may also be illegal. Hospital mandates are an increasingly popular far-right tool. Abortion is a relatively simple and safe procedure, and similar procedures can safely be performed in outpatient settings. Previous research argues that reduced abortion regulations could save thousands of women’s lives.


20-Week Abortion Bans: A New Trend

Tennessee’s abortion ban is part of a larger trend. Several states have enacted similar bands. Just this week, the Iowa legislature voted to ban abortion after 20 weeks. This makes it the 18th state to do so. Iowa, like many other states with abortion bans, will also require a 3-day waiting period for women seeking abortions. This drives up the cost of the procedure by requiring at least two medical visits.


What’s Behind the New Abortion Ban Trend?

Roe vs. Wade is settled law. Even Republican Supreme Court nominees recognize this. So why do so many legislatures seem determined to ban abortion?


It doesn’t matter if the bans are unconstitutional right now. Anti-choice activists finally have a real shot at the repeal of Roe. If Neil Gorsuch gets a seat on the Supreme Court, the law may change. State laws about abortion set up a Constitutional show down, and that’s exactly the point. If any of these laws give rise to a lawsuit, they could head to the Supreme Court. Even if Roe remains the law, new precedent could weaken choice rights, and perhaps even eliminate them altogether. The strategy is a deliberate one. And liberal attempts to enforce abortion rights by suing could ultimately backfire if those suits head to an unfriendly court.

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