NASHVILLE, Tenn. — Tennessee and North Dakota are launching a counteroffensive in the battle for life that could reverberate across the country.
Both have ballot measures Nov. 4 that seek to protect their constitutions from the kind of pro-abortion activism that has eviscerated pro-life regulations in a dozen states. If these measures pass, Tennessee and North Dakota could become models for the other 48 states.
In Tennessee, Amendment 1 would overturn the state Supreme Court’s interpretation that the state Constitution’s right to privacy guarantees abortion. Measure 1 in North Dakota would protect the constitution from such an interpretation.
The amendments are critical because, as Tennessee has learned firsthand, once a state constitution is used to establish a right to abortion, unrestricted access follows, and enacting new regulations becomes almost impossible.
Turning to the States
According to Paul Linton, special counsel for The Thomas More Society, a public interest law firm, and author of Abortion Under State Constitutions, the U.S. Supreme Court’s ruling on Roe v. Wade made abortion legal in 1973, but during the last couple of decades, the court started to uphold the state’s right to regulate it. Seeing this, abortion-rights groups moved the fight from the federal to the state courts.
“The first point was to get laws struck down at the state level that they could not get struck down at the federal level,” Linton said. “Secondly, they sought to establish a right to abortion on state constitutional grounds that will outlive Roe v. Wade.”
He explained that many legal experts expect Roe v. Wade eventually to be overturned, which would then put states completely in charge of abortion.
“A right to privacy does not exist in the federal constitution, but that has basically been their argument with the states — either an expressed or implied right of privacy,” Linton said. “It has been a successful argument in almost one-fourth of the state supreme courts,” he said. “When that happens, the state becomes more permissive than under the federal constitution.”
The reason for that, he explained, is that the U.S. Supreme Court supports the individual state’s right to regulate abortion, but when a state court rules that its state constitution guarantees abortion, laws that restrict it get overturned as “unconstitutional.”
More Liberal Interpretation
Tennessee experienced this 14 years ago, with Planned Parenthood v. Sundquist.
“The 4-1 decision [by the Tennessee Supreme Court] said that the right to privacy guarantees a right to abortion even broader than given under Roe v. Wade,” said Brian Harris, director of Tennessee Right to Life. “It struck down the informed-consent law, the 48-hour waiting period and the requirement for later-term abortions to be performed in a hospital.”
According to Harris, the lone dissenting opinion accurately predicted that the effect of the court’s ruling would be to remove lawmakers’ ability to regulate abortion with the only solution being to pass a constitutional amendment.
“Since then, everything gets overturned based on the interpretation that the right to privacy gives a right to abortion,” Harris said.
If Amendment 1 passes, it will render the Tennessee constitution silent on the matter of abortion and restore elected officials’ ability to legislate regulations. This would be the first time a state constitution has been restored from being used to guarantee abortion and protected against any such interpretation in the future.
The amendment would add these words to the constitution: “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 circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
Although the right-to-privacy argument has worked well for abortion activists, they ran out of states with either direct or indirect privacy clauses, according to Christopher Dodson, general counsel for the North Dakota Catholic Conference. That is why a case currently before the North Dakota Supreme Court could open new opportunities for abortion activists.
“They used the same right-to-privacy arguments and grafted them onto the right to liberty,” Dodson said. “All 50 state constitutions guarantee a right to liberty.”
A district judge declared a North Dakota law prohibiting off-label use of a drug for abortions unconstitutional. He cited a women’s right to “liberty and the pursuit of happiness” as one of the foremost inalienable rights.
Bishops David Kagan of Bismarck and John Folda of Fargo issued a joint statement regarding that decision.
“A lone judge sitting in Fargo has declared that the North Dakota Constitution makes abortion a ‘fundamental’ right subject to practically no limitations,” they said. “In fact, the right ‘found’ by Judge Wickham Corwin is more expansive than that used by the U.S. Supreme Court.”
No matter how the North Dakota Supreme Court decides, Dodson said that Measure 1 needs to be passed so that a right to abortion is never interpreted in the state Constitution. The measure would add these words: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”
Dodson explained that the provision is not self-executing. “It will not outlaw abortion or mandate legislation, but only will serve as a guide as to how to interpret the legislation.” He noted that during his 20 years in pro-life activities he has never seen the state’s entire pro,-life community agree on something until Measure 1.
“Cardinal O’Malley, chair of the USCCB Pro-Life Activities Committee, has also given his support to Measure 1,” Dodson said.
He noted that the other side in the abortion debate realizes the potential ramifications of Measure 1 and are pouring resources into the state to defeat it. “If they succeed here, it will become a road map for what they can do nationwide.”
But if Measure 1 passes in North Dakota, and Amendment 1 in Tennessee, Linton said they would become examples for other states to protect their constitutions.
“Even doing this as a pre-emptive measure, like in North Dakota, makes sense, because you don’t know what can happen in the future,” he said. “And if Roe v. Wade is overturned, then state constitutions will be much more controversial than they even are now.”
Patti Armstrong writes from North Dakota.