Perhaps not since the Scopes Trial in 1925 and Dr. King’s death in 1968 has Tennessee been the site of a national debate on the government’s role to acknowledge God and the nature and equality of men. But that may soon be changing. Pro-life and pro-abortion advocates are now positioning themselves in Nashville to bring attention to a Senate bill (SB 1236) under consideration by the Judiciary Committee. It has been called a “heartbeat bill,” similar to what other states like Alabama and Georgia have passed. However, the Tennessee Senate bill (different from the House version) is actually an attempt to address the personhood and the absolute rights of a child in the womb. In other words, it does not just move up the abortion cutoff line to protect more children, that is, those with a detectable heartbeat. It acknowledges rights to any human life. This is what could make Tennessee the battleground for the abortion debate.
Last week (on August 12 and 13), testimony was heard by the Judiciary Committee. David Fowler of the Family Action Council of Tennessee, one of the pro-life speakers, said, “The Senate Judiciary Committee’s two-day hearings were the best and most significant hearings I’ve been part of in my more than twenty-five years in state politics” (factn.org/the-elephant-in-abortion-hearing-room). What has Fowler, and others, so hopeful is that the Senate bill is grounded in the Ninth Amendment of the United States Constitution, not the Fourteenth Amendment. (The Fourteenth Amendment was cited to uphold Roe v. Wade and Planned Parenthood v. Casey in keeping abortion legal.) The Ninth Amendment to the U. S. Constitution is rather short and simply states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This acknowledgment in the Constitution of “other,” inviolable rights that precede the formation of our government is the basis for arguing the right to life in the Tennessee Senate bill.
According to legal scholars, our “other” rights are rooted in common law, “those ‘laws’ that derive their ‘force’ among us not from legislative enactments backed by the power of the sword, but from such a long course of development over centuries that we know them to be true and real” (factn.org/shining-light-roe-wade-house-heartbeat-bill). Law professor Adam MacLeod, who also gave testimony before the committee, said in his prepared remarks:
The Bill of Rights marks off certain rights as beyond the competence of Congress to alter or abolish. And much of the Bill of Rights has now been incorporated also against state legislatures through the Fourteenth Amendment. But as the Ninth Amendment makes clear, the enumeration of certain common-law and natural rights does not deny or disparage all the other rights that the American people enjoy by virtue of natural law and their ancient customs. Chief among these is the right to life. An absolute right is one that a person enjoys prior to government, vested in him or her by the laws of nature, simply by virtue of being human (factn.org/the-elephant-in-abortion-hearing-room).
We can also think of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Evidently, the U. S. Supreme Court has never directly ruled on a pro-life argument based on the rights protected by the Ninth Amendment. This means that Roe and Casey would not be precedent! Would this actually free up the justices to do the right thing? God only knows.
You should be aware, though, that some “pro-life” groups are aligned against the Senate bill in their “strategic” thinking. They are waiting for a better time and a better court. However, nobody can predict the situation if and when a case concerning this bill reaches the highest court, possibly in three years. We are simply called to be faithful and to believe Jesus’ words, “With God all things are possible” (Matt. 19:26).
Of course, this bill goes nowhere if the Senate doesn’t move it forward in January when the entire legislative body comes back into session. This means that the next five months could bring increased scrutiny, great pressure, and paid-for influence upon Tennessee lawmakers. For us, I envision a similar struggle to the one from five years ago in the passage of Amendment 1. (Amendment 1 overturned the Tennessee Supreme Court’s ruling in 2000 that found a right to abortion is implicit in the State Constitution. The reason Tennessee is now able to even consider SB 1236 is because of the foundation of Amendment 1!) The difference with Amendment 1 is that this time the state Senators will have the responsibility to decide rather than the registered voters of the state. However, our voices, letters, emails, yard signs, and peaceful presence will be no less important!
Please pray for, support, and follow the efforts to make this stand for life in our state. Check in with www.factn.org. We trust not in princes (Ps. 146:3), but perhaps this will be the turning point when our lawmakers and judges will be compelled to fulfill their role under God to protect innocent life. Regardless of whether this ends up being a historic battle or a minor skirmish that does not change the status quo, if we speak out in love and in faith in our Creator and Redeemer, we will not have labored in vain (1 Cor. 15:58).
Rev. Philip Young
Mid-South District Life Coordinator