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‘Fetal Heartbeat’ Bill Suffered from ‘Congenital’ Defects

Apr 26, 2019 by David Fowler

pregnant woman's belly and illustrative graph of heartbeat
Monday night, the so-called “fetal heartbeat” bill was put on life support and transferred to a meeting of the Senate Judiciary Committee this summer. There’s much not to like about what happened on this bill, particularly some of the parliamentary maneuvering. Lots of pro-life Tennesseans are incensed. But the bottom line is that the bill was birthed, legislatively speaking, with a ‘congenital’ political defect. Here’s the not-so-pleasant truth.


Defect No. 1—A Really Bad Start

The bill got off to a bad start. I’ve previously said why that is so, but the bottom line is that the version of the bill passed by the House was so poorly done that even I would not have defended it in court, let alone our risk-averse, jurisprudentially moderate attorney general.1

Unfortunately, a bad start is hard to overcome because, politically, a poorly written or poorly documented bill is the version that sticks in everyone’s mind as the bill goes forward.

As with people we meet, first opinions are hard to overcome, particularly when it comes to a bill’s constitutionality. Non-lawyer legislators, just like their constituents, don’t find it easy to understand why some words or phrases make a bill constitutionally defective, but others, perhaps not seeming that different, now make it constitutionally defensible.


Defect No. 2—Confusion and Overlooked Information

At 3:27 on Monday afternoon prior to the start of the 5:00 p.m. session when Senator Mark Pody’s motion to bring the bill to the Senate floor was to be voted on, I had a veteran senator call me. This senator thought the motion was to bring up the House version of the bill. He didn’t realize Sen. Pody had presented a completely different version of the bill to the Senate Judiciary Committee.

That’s a real problem when the thing the legislator thinks he or she is voting on is said to be unconstitutional by every lawyer you know. Sadly, I suspect there were other senators who were in the same position.

Moreover, I suspect few, if any, of the senators who were not on the Judiciary Committee had gone back to listen to testimony that had been offered to the nine members of that committee in support of the bill. I doubt any of them had read the written transcripts of the testimony I provided to the committee. I suspect they were going off what they’d been told about the constitutionality of the bill as it was a couple of weeks ago. (Refer to Defect No. 1, above.)

That sounds outrageous, but let’s be honest with ourselves. It’s hard to expect someone to meet with constituent groups off and on all day, attend committee meetings in between, go to constituent receptions in the early evening, and still have time to read the bills that are coming up the next day. To do that, a legislator has to work into the night. I did a lot of that, but session just grinds you down, and it becomes physically impossible to keep up.

That’s why lobbyists are important. They relay to legislators the latest information about a bill, make sure legislators know what they are voting on, and answer any questions legislators might have.


Defect No. 3—Going It Alone Is Hard

But, in the case of the “fetal heartbeat” bill, the organization that would normally handle that work on pro-life legislation was not in favor of the bill. It was not going to do anything to help toward the bill’s passage.

Given that our organization already had its agenda set before session started and this bill popped up, our one regular lobbyist had to follow through with the legislators we’d asked to work on our issues. Nothing will ruin a lobbyist’s effectiveness like leaving a sponsoring legislator hanging. We just had no capacity to take on the ton of work it takes to lobby another bill, particularly such a major bill.

I did put off the other work I had been directed to do by my board in order to provide Sen. Pody with a legal justification for his amended bill; however, the bottom line is that the House and Senate sponsors originally went forward with the bill knowing they had not sought any organizational lobbying support, and any presumption that they thought such would not be necessary proved wrong.


Defect No. 4—Leaving the ‘Heartbeat Bill’ Defenseless

In my effort to assume, for now, the best of the Republican senators, I told Sen. Pody that there was a sure measure of wisdom in not enacting a bill that the attorney general would not defend in court. This is particularly problematic since the only alternative in that case would be for the two Speakers to agree to hire outside counsel. Speaker McNally was not going to take my word on whether the bill was constitutionally defensible over that of the attorney general. I can appreciate that. Sen. Pody, to his credit, appreciated this problem and tried to get a letter from Liberty Counsel agreeing to defend the bill if passed, but there just wasn’t enough time.


Can the Defects Be Overcome?

Now, the question is whether those senators who on Monday professed their pro-life bona fides on the floor and those who have since professed them to disgruntled pro-life constituents will do what needs to be done this summer to make sure this bill is given every opportunity to pass in January and will garner their votes.

What has happened is that opponents of the bill this year have now laid their political bed among pro-life voters, and they will have to sleep in it.

Continuing to say, as some have done, that “this bill isn’t strong enough” or “this isn’t the right vehicle” is going to ring hollow with pro-life voters next year if they don’t attend the summer hearings to learn for themselves the constitutional bona fides of the bill or at least offer some of their campaign and leadership PAC funds to pay for the expenses of legal experts who will come testify in support of the bill.

But if they don’t do those things, then in my book they need to come up with their own different and better vehicle, or give a credible, legally demonstrative explanation for why any attempt to seek Roe’s reversal is a constitutionally foolish errand.

Time will tell as to how pro-life this Republican majority is in the Senate, but this year time was not on the side of those pro-life activists who wanted to be leaders in the effort to overthrow Roe v. Wade, not just wish the best to others.

NOTES
  1. I do not say that in a pejorative way. I think the attorney general would agree that my jurisprudential philosophy and understanding of constitutional interpretation and, particularly, my more limited view of the judicial power are more conservative than his.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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