The U.S. Supreme Court chose not to consider a case against Tennessee’s Amendment 1, rebuking pro-abortion activists and letting stand a 2014 measure that declares there is no “right” to abortion in the state’s constitution.
The ballot initiative added language to Article 1 of the Tennessee Constitution declaring that none of its provisions “secures or protects a right to abortion or requires the funding of an abortion,” and that the “people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion.” It was approved 52.6% to 47.4% in 2014.
According to the Family Action Council of Tennessee (FACT), the push for Amendment 1 was driven by a 2000 ruling of the state Supreme Court that found a “right” to abortion in the state constitution even broader than the national one supposedly identified in Roe v. Wade, striking down Tennessee’s duly-enacted laws requiring informed consent, 48-hour waiting periods, and that late-term abortions be committed only in hospitals.
“Plainly stated, the effect of the Court’s holding today is to remove from the people all power, except by constitutional amendment, to enact reasonable regulations of abortion,” dissenting Justice Mickey Barker wrote at the time.
Abortion advocates sued to invalidate the amendment by challenging the state’s method of counting votes for ballot initiatives. They argued that the number of “yes” votes must be equal to or greater than the number of people voting for governor plus one, and therefore only voters who voted in the gubernatorial race should have their votes on the amendment counted.
The state responded that the criteria used to ratify Amendment 1 was no different than that used for constitutional amendments over the past hundred years. Circuit Court Judge Michael Binkley agreed in 2016, but U.S. District Judge Kevin Sharp ordered a recount nonetheless. This January, the U.S. Sixth Circuit Court of Appeals overturned Sharp’s recount order.
The Supreme Court’s decision not to hear the case leaves the Sixth Circuit’s ruling as the final word on the case, delivering pro-lifers a victory after almost two decades’ worth of legislative and judicial struggle.
Tennessee Right to Life president Brian Harris called the news a “cause for great celebration,” The Tennessean reports. “Now we have to continue to work for the day when every life is again protected by the laws of our state and nation.”
The decision “finally puts to rest any uncertainty surrounding the people’s 2014 approval and ratification of Amendment 1 by 72,000 votes,” state Attorney General Herbert Slatery III added. “This is a confirmation of the State’s position from the outset: a state, and not a federal court, should decide how votes are counted under its own Constitution […] The votes were correctly and constitutionally counted and the plaintiffs’ claims of unfairness, lack of due process and equal protection were all denied.”
Before the amendment, Tennessee’s judicial status quo made the state an abortion destination with virtually nonexistent safety standards, pro-lifers argued. The Tennessean found in 2014 that more than a quarter of abortions sought in the state were from out-of-state women, and Tennessee OB/GYN Dr. Brent Boles explained in 2015 that “any inspections of abortion clinics in the state [since 2000] have been voluntary. For those clinics that did allow inspections, no enforcement provisions existed.”