How the 6th Circuit’s Pro-Life Decision Helps Tennessee Challenge Roe v. Wade

Dec 13, 2019 by David Fowler

couple holding baby shoes
When the United States Supreme Court refused to hear an appeal of a decision by the U.S. Court of Appeals for the 6th Circuit upholding an abortion-related law in Kentucky, it did not indicate a willingness by the Supreme Court to overturn Roe v. Wade. But the circuit’s opinion, which stands as good law relative to Tennessee, should cause three Tennessee state senators to think hard before voting against the new, soon-to-be filed Rule of Law Life Act

Why the 6th Circuit Decision Matters to Tennessee

It is rarely wise to predict what the U.S. Supreme Court is thinking when it refuses to hear an appeal from a circuit court. However, it is appropriate to consider what a circuit court said in upholding or enjoining enforcement of a law and how it reasoned to its judgment, particularly if your state is within that circuit court’s jurisdiction. That’s because any similar law or law on the same topic would have to be ruled on by the circuit court before any appeal could be taken to the U.S. Supreme Court.

Since Tennessee is in the 6th Circuit, it is appropriate for the senators on the state Senate Judiciary Committee that seem skeptical of any law that challenges Roe v. Wade to examine what the 6th Circuit said in relation to abortion. If that court should uphold the Rule of Law Life Act, I would bet the farm on the U.S. Supreme Court hearing an appeal.

The Kentucky Law Was Challenged Under the First Amendment

According to the circuit court, the Kentucky law in question, HB 2, “direct[ed] a doctor, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and explain, in the doctor’s own words, what is being depicted by the images—for example, pointing out organs and whether the patient is pregnant with twins.”

While the circuit court upheld the law, it was not challenged as an unconstitutional regulation of abortion, as putting an “undue burden” on a woman’s decision to terminate a pregnancy under the 14th Amendment. Rather, the abortionists challenged the law as constituting government-compelled speech, a law telling the abortionist what he or she must tell the expectant mother.

Why the 6th Circuit Ruling Is Still Relevant to Tennessee

But the fact that the law was challenged under the First Amendment rather than under the 14th Amendment does not make the circuit court’s decision irrelevant for two reasons.

First, when it comes to how the 6th Circuit might rule on the Rule of Law Life Act, there are two questions legislators need to ask: What does the Constitution itself say about abortion, and how did the 6th Circuit’s judges understand abortion in deciding the free speech question?

The second reason the circuit court’s decision is relevant is in regard to how the court’s understanding of abortion and an informed consent type law relate to the free speech question. The court said it was constitutional to have the information at issue conveyed to the woman because it was truthful. That is why the law didn’t violate the First Amendment.

Now let’s consider the two questions above and what the circuit court said was true about abortion.

Does the Constitution Really Provide Any ‘Right’ to Abortion?

The Constitution itself says nothing about abortion. But legislators allow abortion policy for the state to be set and governed by what the U.S. Supreme Court says the Constitution says about abortion, not what the Constitution itself actually says on the subject.

I won’t say more about this line of opposition by those lawyers opposed to the Rule of Law Life Act other than this. In Apprendi v. New Jersey, 530 U.S. 466, 499 (2000), the majority chastised the dissenting opinion of Justice Breyer, a current pro-abortion justice, with these words:

JUSTICE BREYER proceeds on the erroneous and all-too common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.

However, for those who don’t care to remind the Supreme Court of this proposition, I turn to what the 6th Circuit said about abortion, which I would urge legislators to consider.

The Sixth Circuit’s View of Abortion

Abortion Involves an ‘Unborn Child’

Thirty times in the first 17 pages of its opinion, the circuit court used the terms “unborn child” or “unborn life.” This is important because the U.S. Supreme Court used that same terminology in Gonzales v. Carhart in upholding the constitutionality of the federal partial birth abortion statute.

In fact, that kind of language by a majority of her colleagues threw Justice Ginsburg into an apoplectic fit. In her dissent, she said,

The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion . . . [a] fetus is described as an “unborn child,” and as a “baby,”

So, the 6th Circuit seems to be tracking in a positive way with what the U.S. Supreme Court said in regard to an abortion law it upheld. That should encourage the 6th Circuit in its thinking.

Abortion Involves a ‘Human Being’

The 6th Circuit’s opinion quotes with approval this language from an 8th Circuit decision upholding a South Dakota informed consent provision telling the woman “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being.”

The law defined a “human being” as “an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.” (emphasis supplied)

Again, the U.S. Supreme Court in Gonzales used this same kind of language. It, too, threw Justice Ginsburg into a hissy fit. She wrote:

In cases on a “woman’s liberty to determine whether to [continue] her pregnancy,” this Court has identified viability as a critical consideration. . . . Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” (emphasis supplied)

So far, we see that Tennessee is in a circuit in which the court knows we are speaking of a human being, a child, only one that has just not been born, but one whose life is scientifically, not just theologically or metaphysically, a “whole . . . human being” who is also a “separate . . . human being” from that of the child’s mother. 

The good news here is that what the 6th Circuit knows to be true is consistent with what the U.S. Supreme Court knows is true.

The ‘Unborn Child’ Is a ‘Person’

This point, to me, is really big. The 6th Circuit did not call the unborn child a “person,” but it did the next best thing.

Specifically, the 6th Circuit opinion quoted the following language from the aforesaid decision of the 8th Circuit, which held constitutional the following language in the South Dakota informed consent law because it was truthful:

[t]hat the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and the laws of South Dakota, [and] [t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated. (emphasis supplied)

Think a moment about what a relationship is, because the court held that It was constitutional to have an abortion provider tell a pregnant woman what I just quoted because it was truthful.

Here’s the point: Relationships entail living beings. You don’t have a relationship with a thing; you own or possess things.

And what kind of relationship is this about which the circuit courts are speaking?

Because both the mother and the unborn child are said, truthfully, to be human beings, it must be a personal relationship. Only a person can have a personal relationship and only with another person.

If an abortion terminates a personal relationship between the mother and the “unborn child,” how, then, can the unborn child not be a person under the U.S. Constitution?

What Does This All Mean?

If the mother and the unborn child have a personal relationship that is constitutionally protected from coercion by a third party, how is it that the unborn child’s life and right to a relationship with the mother and with others have no protection under that same Constitution?

The Rule of Law Life Act effectively says this to the 6th Circuit:

The U.S. Supreme Court has screwed up what a “person” is under the 14th Amendment, but you have said enough for all of us to know that you know you will be telling yourself a lie if you say that the unborn child is not a person. 

So, let the Supreme Court keep its 14th Amendment jurisprudence, because we are relying on and asking you to consider the Ninth Amendment. The Ninth Amendment says that judges cannot “construe” the words in the 14th Amendment “to deny or disparage other rights” the people of Tennessee retained to themselves. 

One of those is the right to life, and Tennessee is hereby securing that right, even for the unborn persons among us. 

The Rule of Law Life Act is your chance to get things you know to be true straightened out and make the Supreme Court rethink its abortion jurisprudence. Take it! Uphold the law.

While that’s what I think needs to be said for the Rule of Law Life Act to get a full debate in the Tennessee Legislature next year, one of these three senators on the Senate Judiciary Committee—Mike Bell, Todd Gardenhire, or John Stevens—needs to be willing to say that.

Right now, no one knows what they will say, but we are sure to find out next legislative session.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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