By David Fowler

President, Family Action Council of Tennessee

Senate Bill 3512/House Bill 3682 purports to establish some measure of informed consent in connection with abortions, and it purports to establish a “waiting period” prior to an abortion. Currently, by virtue of a decision by our state Supreme Court, the informed consent and waiting period laws that had been passed into law in the mid-1990’s were ruled unconstitutional.

While informed consent and a waiting period make for good abortion policy and are needed, this Bill needs to be evaluated in light of the broader discussion about abortion policy taking place in Tennessee. Currently the General Assembly is debating SJR 127, a resolution to amend the state constitution to “reverse” the aforesaid Supreme Court decision. Absent the passage and subsequent ratification by the people of SJR 127, the legislature will not have the same freedom a majority of other states have to regulate abortion. As discussed below, SB 3512/HB 3682 actually demonstrates how little ability the people have to enact reasonable abortion policies in the absence of the passage of SJR 127.

Some would suggest that those who are pro-life should support this legislation. But a Bill should not be embraced simply because it might appear, on its face, to address the issue of abortion favorably. In this case, several questions need to be asked. First, would the bill, if enacted into law, really make a difference in saving a pre-born child’s life? Perhaps, but probably not. Does the bill accomplish what needs to be accomplished in order to have an effective state policy? No. Would it create a false impression that SJR 127 is unnecessary? Absolutely. Does SB 3512 therefore undermine the possibly that SJR 127 will get the debate it needs and deserves and ultimately, undermine its passage? Yes.

Consider:

The informed consent cannot be verified. The bill allows the information constituting informed consent to be given by phone, a method by which there is no record that the information was ever really given or to whom it was given. And the bill does not require the collection of this information for a “caller.” There is no way to know that what the law requires is being followed.

The waiting period is illusory. This, in turn, undermines and makes illusory the 24-hour waiting period. How can any abortionist know that 24 hours has elapsed from the time the woman is “informed” when there is no record that the information was ever given, let alone when it was given? And there is no way to know whether the person who is then asking for the immediate abortion is the one who actually called in and got it. With Planned Parenthood in Kansas under a 100+ count indictment, we are kidding ourselves if we think this law would ever be applied in such a way as to create a 24-hour waiting period.

That performing an abortion in disregard or this waiting period is a crime is of no real significance. A prosecutor must have a record of when information is given and to whom it is given in order to determine that the waiting period have been violated. Since this information is not required to be collected nor could its after-the-fact “manufacture” by an abortionist be prevented, the threat of this penalty is illusory.

Physicians are not involved. The Attorney General has said that this bill might be constitutional because the information to be given can be given by any “appropriate health care provider.” Of course, there is no definition as to which of the many types of “health care providers” is “appropriate.” This person could be some kind of medical technician. How helpful is it for a woman in crisis to have a medical technician giving her information of a medical nature? Can such a person answer questions that a woman might have about something she is told?

Absent the decision in Planned Parenthood v. Sundquist, these problems could be fixed. But, absent passage of SJR 127, these problems cannot be remedied adequately.

The information to be given is illusory and inadequate. In addition to the foregoing, the utter inadequacy of the informed consent is further evidenced by the requirement itself. There is little to no specificity as to what a woman should be told. While the law of informed consent for general medical purposes does not have specificity, there are reasons why. First, we do not have laws providing for specific medical procedures so specificity as to what should be told for a particular procedure is not possible. Second, the abortion process is particularly unregulated compared to the rest of the health care industry. Again the over 100 count indictment against Planned Parenthood in Kansas demonstrates the need for specificity and careful scrutiny over this industry.

However, the kind of specificity that would be needed to have a law that is meaningful actually would undoubtedly make the bill unconstitutional which demonstrates the need for SJR 127.

For example, many states not burdened as we are in Tennessee require that the woman be told things such as the following:

• The impact of abortion on future fertility
• The psychological impact of abortion
• The relationship between abortion and cancer
• The developmental stage of the baby
• The possibility of fetal pain
• That any ultrasound that taken is available for the woman to see.

The bill will give excuse for legislative delay. If the bill were to pass, it would undoubtedly be the subject of an action by Planned Parenthood to enjoin its enforcement. To argue that such a suit might not be filed would be the best evidence of the illusory nature of the bill. So a lawsuit is to be expected.

However, with the last lawsuit taking years before it was decided by the Tennessee Supreme Court, the same can be expected. Thus, during this litigation period we’d have no law and would have handed to legislators the perfect excuse not to take action on SJR 127.

Why would I say that? Because I served in the Senate for 12 years, and I know that if there is a reason to avoid a controversial vote, it will be taken. We should not be surprised. It would be simple enough to convince voters that there is no need to take the “drastic step” of amending our Constitution until the lawsuit is decided because the Court might uphold the law.

Action on SJR 127 is needed now. If the legislature would just put this issue on the ballot, the people, not 5 people on our Supreme Court, would decide this issue and the people could decide it by 2010, probably years before the Court would decide the sure-to-come lawsuit if this bill is passed.

SB 3512/HB 3682 accomplishes little to nothing positive in the area of sound abortion policy. It does establish how greatly reasonable abortion policy is negatively affected by the decision in Planned Parenthood v. Sundquist and how important SJR 127 is. And it establishes the need for the people to be able to vote on SJR 127.