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One state legislator's abortion bill advances, another pushed back in House subcommittee

Nathan Baker • Mar 9, 2017 at 7:34 AM

NASHVILLE — Two local legislators’ bills to tighten abortion restrictions faced their first votes in a House subcommittee Wednesday, one clearing the hurdle and the other temporarily stumbling.

The House Health Subcommittee passed Jonesborough Rep. Matthew Hill’s “Tennessee Infants Protection Act” on to the full committee, while the “Heartbeat Bill” sponsored by Rep. Micah Van Huss, R-Jonesborough, was rolled to 2018 by a 5-4 vote.

Hill, a member of the subcommittee considering his bill, said the legislation aims to require doctors performing abortions to first assess fetuses’ viability starting at the 20th week of gestation and criminalizes abortions if it is determined to be viable. It also sets the 24th gestational week as the period when a fetus is viable, an important term in court precedent.

The 1973 U. S. Supreme Court case Roe v. Wade established that states could not put the interests of a fetus before those of a woman until the fetus could survive outside the woman’s body, or when it was viable. Medical practices and technology of the ’70s put that fetal viability point at 24 to 28 weeks, a period acknowledged by the court, but which also allowed for a case-by-case assessment of viability made by a pregnant woman’s physician.

Because of medical advances made in the past 40 years, Hill’s bill requiring viability assessments beyond 20 weeks of gestation, could mean some abortions will be illegal earlier than the 24-week Supreme Court cutoff, a point questioned by Rep. John Ray Clemmons, a Nashville Democrat.

After unsuccessfully attempting to amend the bill to require viability assessments after 24 weeks, Clemmons questioned Hill’s scientific reasoning for pushing the viability age to 20 weeks.

“This is also about protecting the constitutional rights of women,” he said, pausing until cheers from opponents of the bill, audible on the live video feed from the capitol, died down. “There has to be a balance with that. I think it’s setting us up for an issue that it will be challenged.”

Throughout the debate, Hill made reference to similar Ohio legislation he said “is still in effect and has never been challenged in court.”

He said the wording of the legislation was carefully crafted by himself and constitutional attorneys to withstand judicial scrutiny.

“It is common in judicial case law that the 20th week is recognized as when viability scientifically occurs,” Hill said, pausing for a less-than-favorable uproar from the same group that interrupted Clemmons. “If you go earlier, it could become constitutionally suspect. When you look at the medical science of it, the 20th week has been judicially in courts recognized as the point of viability. Whether you believe it or not, I tried to make it as constitutionally sound as possible.”

Van Huss’ bill, dubbed the “Heartbeat Bill” because it would ban abortions after an ultrasound detects a fetal heartbeat, met a quick end — at least temporarily — Wednesday.

The bill requires physicians to perform ultrasounds and, whether or not a heartbeat is detected, to record the gestational age of the fetus, the ultrasound method used, the date and time of the test, the results of the test and inform the mother in writing whether a heartbeat is detected. A woman not provided with such information is permitted to sue the medical professional, under the proposed law.

If a heartbeat is detected, which commonly can be heard between the sixth and 12th weeks of a pregnancy, doctors performing abortions could face criminal charges.

In a lengthy subcommittee hearing last week before a vote on the bill was postponed, Van Huss said as a Christian, he believed it was his moral obligation to pursue the legislation.

“For me, the answer to abortion is a simple one — God says in the book of Jeremiah: ‘Before I formed you in the womb, I knew you, and before you were born, I consecrated you,’” the lawmaker said to the panel.

By blocking up to 90 percent of currently legal abortions, Van Huss said the bill had the potential to save thousands of unborn babies each year in the state.

But some at the meeting last week, including the man who managed the 2014 campaign to pass a state constitutional amendment giving lawmakers broader power to regulate and restrict abortion, argued against the bill.

Brian Harris, president of Tennessee Right to Life, warned passing Van Huss’ bill could lead to lost ground for the pro-life movement and its supporters in the General Assembly.

“The national pro-abortion attorneys that are coming into our state to argue against those statutes are using as Exhibit A the statutes you’ve already passed,” Harris said. “You bring an unconstitutional ban before them, and it’s only going to hearten their case.”

He said the Supreme Court, before Justice Antonin Scalia’s death, refused to consider appeals from states in which similar heartbeat bans were enacted, and there is not reason to believe the court, even with President Donald Trump’s nomination Neil Gorsuch seated, would act differently.

Another abortion law deemed unconstitutional would only put another stumbling block in the way of pro-life activists’ ultimate goal of overturning Roe v. Wade, he added.

“We’re at the beginning of a new administration where there is a clear commitment to seating pro-life judges,” Harris said. “Now is not the time to put measures before judges who are not hospitable to the pro-life position, but let’s just bide our time. After all, we have waited for what, 15 years? to move Amendment 1 forward. You all bear the war wounds for that. Our day is coming, but we have to be disciplined, we have to be measured in our approach.”

Without much debate Wednesday, the subcommittee voted 5-4 to roll Van Huss’ bill to the 2018 calendar for consideration.

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