A female doctor in a white coat talks straight to the camera. She says she had a patient who found out she was pregnant on the same day she learned her cancer was back. She continued the pregnancy and fought the cancer. The child lived and she died, it was her decision and no one else’s. No politician has the right to legislate for the awful things that can happen during pregnancy. Amendment 1 is just government interference.
Viewers seeing this ad might not instantly grasp which side they’re supposed to be on. The target audience is voters who are uneasy about abortion, and may consider themselves pro-life, but want exemptions for devastating circumstances. The woman described in the ad did not terminate her pregnancy to pursue more aggressive life-saving cancer treatment, but if an amendment to the Tennessee Constitution passes, that decision would be taken out of her hands.
Amendment 1 on the Tennessee ballot in November would strip the right to abortion from the state’s constitution, the first time that any constitution in the U.S. would be amended to remove an established right. It would also be the first time the word abortion is added to any constitution and singled out as the only medical procedure outside the zone of privacy.
“Their pitch is that this would make the constitution neutral on abortion,” says Roy Herron, a former Tennessee Democratic state senator who fought a long and often lonely battle against the legislature’s increasingly assertive GOP majority before he was defeated in 2010. “How would they like the Constitution neutral on the Second Amendment so legislators could outlaw the right to bear arms? How about making the First Amendment neutral?”
It has taken a decade for anti-abortion activists and their supporters in the Tennessee legislature to clear all the hurdles to get a constitutional amendment on the ballot. The drive for an amendment began after the Tennessee Supreme Court in 2000 ruled that three out of four restrictions on abortion passed by the legislature and challenged by Planned Parenthood and the ACLU were medically unnecessary and posed an “undue burden” on women, rendering them unconstitutional. “A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution,” the judges wrote in their opinion.
To get on the ballot, Amendment 1 had to pass both houses of the Tennessee legislature, the General Assembly and the state senate, not once but twice, the first time by majority vote and then by two-thirds, and in consecutive years. With Republicans a supermajority in the House and a majority in the Senate, victory was assured by 2011 with the vote scheduled for this November. It is the state’s marquee race, with both sides understanding Amendment 1 could be a model that could extend far beyond Tennessee should it pass.
It says, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
The first sentence is straightforward, but the second sentence is craftily written to leave the impression that exemptions are either in place, or could easily be put in place. “The language on the ballot is deceptive and deliberately so,” says Herron. What Amendment 1 would do is allow lawmakers to write and pass laws restricting abortion without having to worry about their constitutionality on the state level. “If you watch the Tennessee state legislature closely, it’s pretty clear they’re all about banning abortion with no exceptions,” says Steven Hershkowitz, spokesman for the Vote No on 1 campaign. “If Amendment 1 is approved, they could pass personhood and they wouldn’t even have to amend the constitution.”
Constitutional amendments to declare the fetus a person from the moment of conception have failed in Mississippi and Colorado, and a modified version is on the ballot again this November in Colorado. Generally voters are wary of these amendments as too extreme, which is why the Tennessee approach is so different, and from the pro-choice perspective, so dangerous in the power it extends to lawmakers. “If Amendment 1 does pass, it will open the floodgate and they will be passing every imaginable restriction they can come up with,” says Jeff Teague with Planned Parenthood of Middle and East Tennessee.
That’s the point, says Mallory Quigley with the Susan B. Anthony List, an anti-abortion group. “Passing Amendment 1 is critical to advancing any lifesaving legislation in the state, including the Pain Capable Unborn Child Protection Act to stop abortion after five months. This is a compassionate, popular measure that has already passed 13 states and the House of Representatives.”
In May, Vanderbilt University polled this question: “This fall, Tennessee residents will be asked to vote on an amendment to the state constitution that would give the state legislature more power to regulate abortions. Do you favor giving the state legislature the constitutional authority to regulate abortions, or do you oppose this?
Only 23 percent favored and 71 percent opposed, a ratio of over 3-to-1 against Amendment 1. But opponents take little comfort from these lopsided numbers. It’s one thing to win the intellectual argument, that Amendment 1 is not about whether you’re for or against abortion; it’s about government power, and quite another to win on the ground where the energy and the passion and the foot soldiers are on the pro-life side. “Republicans are using churches all over the state in a massive drive,” says Herron, a former United Methodist minister, “and the latest polling I’ve seen, it’s a tossup.”