Clemmons challenges constitutionality of abortion bills


Anita Wadhwani and Dave Boucher, The Tennessean

April 21, 2015 - Two abortion measures are now headed to the governor's desk after the Tennessee House voted 79-18 in favor of requiring a 48-hour waiting period for women seeking an abortion after in-person counseling by a physician and 79-17 for new regulations of abortion clinics.

A spokesman for Gov. Bill Haslam said he anticipates the governor will sign both abortion bills into law.

"Like he does with all legislation that comes to him, he'll review the bills in their final form before taking any action, but I anticipate he'll sign them," spokesman Dave Smith said.

On the floor of the House, efforts to amend or challenge the bills by Democrats — who at times argued passionately for a woman's right to choose and detailed the impact of adding hurdles to accessing an abortion for poor or minority women — were handily defeated, with the Republican majority voting down an amendment that would have allowed women to receive counseling over the phone or by a non-physician and an amendment to exempt victims of rape or incest from waiting period requirements.

"The ultimate effect of this is putting an obstacle in the path of a woman seeking to exercise her constitutional right to an abortion," said Rep. John Ray Clemmons, a Nashville Democrat.

But Republican backers of the bills asserted the measures were designed to protect the health and safety of women, to better regulate abortion and reflected the desire of a majority of Tennessee voters for "common sense" abortion regulations.

"As we all know, abortion is a serious medical procedure with potential serious physical and physiological risks" said Rep. Matthew Hill, a Republican from Jonesborough who authored the waiting period requirements and called the measure a "pro-woman bill." "Women and girls deserve all available facts and information to make a fully informed decision."

Higher standards for surgery centers

If signed by the governor, one measure would make Tennessee one of 23 states to require abortion providers to meet stricter standards of outpatient surgery centers. The bill requires all abortion providers performing 50 or more abortions each year to be regulated as ambulatory surgical treatment centers, a designation that comes with lengthy requirements for the physical building. That requirement is being challenged in Texas, where a federal court of appeals has heard arguments that the requirement, along with a package of abortion restrictions, would close more than half of the state's abortion clinics if enforced.

Four abortion providers in Tennessee meet those standards. They include one clinic in Nashville, two in Memphis and one in Knoxville. A fifth abortion provider that met the standards closed in 2012 after lawmakers passed a requirement that physicians performing abortions must have admitting privileges at local hospitals.

Three abortion providers that are not registered as ambulatory surgical treatment centers include The Women's Center in Nashville and clinics in Bristol and Knoxville.

48-hour waiting period

A second measure passed on Monday would require women seeking an abortion to wait 48 hours after receiving in-person counseling by a physician before she could obtain an abortion — a measure proponents said was designed to give women the information and the time they need to make an informed decision. Opponents have said the measure is designed to put unnecessary hurdles in the way of women seeking abortions.

The swift approval of the abortion measures by the General Assembly follows the voter-approved passage in November of Amendment 1, which stripped the right to an abortion from the Tennessee Constitution. The measures approved Tuesday are similar to laws struck down by the state Supreme Court in 2000, when the high court concluded that Tennessee Constitution's strong privacy protections extended to the right to an abortion — a right removed by voters in the last election.

Backers of the bills said they were giving voters what they want.

"The majority of voters told us…they wanted common sense regulation," Hill said. "We are keeping our word...we are fulfilling our promise that we gave the voters last year."

But even with an amended state constitution, the measures may still face a legal challenge if abortion rights advocates can make an argument they run afoul of the U.S. Constitution. Abortion rights proponents have said they will study closely the final language of the measures to see if they meet standards on abortion set forth by the U.S. Supreme Court, which ruled that any abortion regulation cannot pass constitutional muster if it imposes an "undue burden" on women in obtaining an abortion.

The waiting period bill authors acknowledged that potential in the language of the bill, by creating a "spring-back" provision that would revert the waiting period to 24 hours from 48 if the legislation faces legal challenge.

And an amendment added in the House on Tuesday states that if any portion of the measure was held to be invalid, the remainder would remain in effect. The bill returns to the Senate for one last vote on that amendment before heading to Haslam's desk.

The waiting period measure requires specific and detailed information be provided by a physician 48 hours prior to performing an abortion. The information includes:

• Confirmation of pregnancy and approximate gestational age of the fetus

• The availability of numerous public and private agencies available to assist her if she chooses not to have an abortion

• The risks of pregnancy and abortion

• If a woman is more than 24 weeks pregnant, the physician must inform a woman that her fetus may be viable and if a viable child is born during the course of an abortion, the physician has a legal obligation to take steps to preserve the health of the child — although there are no abortion clinics in Tennessee that provide abortions past 16 weeks of gestation.

The information requirements are waived in a medical emergency.