The Perils of Power Politics—Abortion and the Tennessee Legislature

Jan 6, 2023 by David Fowler

The Perils of Power Politics—Abortion and the Tennessee Legislature

The Perils of Power Politics—Abortion and the Tennessee Legislature

Power politics is basically all progressives, liberals, conservatives, and conservative Christians know. It is all I knew until recently, and its habits are hard to break. I now believe it has an inherent defect. It became apparent last week when some Tennessee legislators began to equivocate on their continuing support for the Human Life Act, Tennessee’s abortion “trigger law.”

Power Politics Defined

Power politics assumes that enactment of public policy is strictly a game of power. He who has the power, makes the policy.

To interest groups, like the one I oversee, the idea is this: Gather as many like-minded people as you can, hopefully more than the other side, and use that collective power to influence legislators on issues you collectively care about.

This tactic presumes that legislators’ principles are always, or at least far too often, tempered by how much money or how many votes an interest group can bring to the re-election table. Unfortunately, during my time in the Senate, I found that was the case for some of my colleagues, and I think the tendency is worse now.

But, as I explain, playing politics and policy that way can be perilous.

The Context for Enactment of the Trigger Law

The trigger law was enacted a couple of years ago at a time when no one could envision Roe v. Wade being reversed. In fact, no case was going through the federal judiciary that squarely and unequivocally presented the question, “Must Roe v. Wade be reversed?” 

For some pro-life legislators in the House, the fact that a trigger law that might never go into effect was not good enough. They wanted to enact a law that would put the legitimacy of Roe squarely before the courts. They wanted to be part of seeing it reversed.

So, some of them pressed for adoption of a heartbeat bill, later known as the Rule of Law Life Act. But the influential pro-life political organization in Tennessee wanted the trigger law enacted instead, and its opposition to the Rule of Law Life Act helped kill it. That, of course, was the organization’s prerogative.

During the next election cycle the organization did not endorse the two House members who had pushed for the Rule of Law Life Act, as it had in past years. That, too, was the organization’s prerogative. 

During the ensuing election season and for whatever reasons, both House members lost.

That’s how power politics works.

Roe’s Reversal Pulls the Trigger

However, Roe’s reversal in June triggered the trigger law. Tennessee law now treats the unborn the same as any other person under the law, meaning his or her life cannot be taken without due process of law, which abortion never affords the unborn person. A doctor who performs an abortion for reasons other than those for which limited exceptions are made, if convicted, is guilty of committing a felony.

Legislators Who Want to “Un-pull” the Trigger 

One thing that now troubles some legislators and that they hope to “fix” in the upcoming session is a provision in the law providing an affirmative defense to a doctor if prosecuted for performing an abortion, namely, that the abortion fell within one of the exceptions.

One of the Republican members and a lawyer said, 
Although well intended, the affirmative defense provision is not only overly burdensome for physicians but it can prevent them from performing life-saving abortions for fear of litigation, which puts at risk the lives of pregnant women who require medically necessary abortions.

Another Republican member, a physician said, 
I never would have voted for the bill if I had appreciated what is there. I'm not an attorney, I didn't know what [an] affirmative defense was. I didn’t think there would be anything, anywhere, in the American jurisprudence system where a person could be [presumed] guilty and have to prove his innocence.
Notably, the physician legislator’s endorsement in the last election cycle has now been withdrawn by the pro-life advocacy organization.

Evaluating the Legal Objections Now Offered

Any concern that the presumption of innocence can be done away with represents a failure to understand what the Due Process Clause in the United States Constitution requires in every prosecution. Moreover, thinking the presumption of innocence required by the Due Process Clause can be abolished by a statute represents a failure to understand the Supremacy Clause; it makes the Constitution’s requirements supreme in case of a conflict with state statutes. 

And proving an affirmative defense is not “overly burdensome” because it minimizes how the prosecutorial process works. The burden is first on the prosecution to prove a crime has been committed (that’s the presumption of innocence). If the burden is not met, there is no conviction and no guilt.

However, it is not enough for a district attorney to know that an abortion was performed to launch into a prosecution. Even the crime shows on television should teach us that a district attorney would review the medical record before commencing a prosecution to determine whether an affirmative defense could be proved. And remember, a conviction requires proof beyond a reasonable doubt. So, any proof given to the jury by the physician’s legal counsel that the defense might apply or that the doctor reasonably thought it applied makes prosecuting the doctor a waste of time. 

In fact, the lobbyist for the pro-life organization to which I previously alluded rightly said, “We believe if the average Tennessean understood the legal difference between an affirmative defense and an exception and how minimal that is, they would support this law.” 

Apparently, though, some legislators didn’t know these things when they voted. And if defending lawsuits is per se “burdensome,” then perhaps the judicial branch should be abolished.

The Peril Exposed

The peril of power politics is exposed by the above facts and a statement attributed by the Tennessean to the physician legislator that “he doesn’t want to trade public blows with” the pro-life advocacy organization. 

The Tennessean also attributed to him his belief that “the group's public condemnation is a ‘shot across the bow’ to lawmakers who might be fearful of the group's influence in conservative circles.”

Power politics can induce a legislator to vote for a bill based on perceived political consequences – not looking pro-life (or pro or con anything else for that matter) in the next election cycle and losing votes. But fearing and even respecting those consequences does not make one pro-life.  

The peril is that after years of endorsements based on votes and re-elections that bring the power of incumbency, the correctly-voting legislator of the past will turn at a critical time in the present.

But that is not all. In this instance we have learned that some well-intentioned legislators simply either do not appreciate or cannot correctly apply fundamental aspects of our Constitution and how our legal system works to the legislation they are voting on. So I ask, “Even if the quoted legislators vote right next session—against changes to the pro-life law—should they be endorsed in the future?”

Power politics might say yes. 

Power Politics and its Application to Me

On the other hand, I am increasingly hesitant to urge voters to vote for a legislator because he or she voted the right way on a bill if I don’t believe that legislator understands the fundamentals of our constitutional system well enough to apply them correctly.

Why should this be so? Because legislators vote on many important issues beyond those on which my interest group focuses. Should I not care on your behalf as a fellow citizen that a legislator I endorse may apply fundamental principles of our system wrongly in those other instances? Should I gloss over that simply because they were “fearful” enough of my interest group’s “influence in conservative circles” to vote “my way” on certain issues?

Power politics may get a bill I favor passed or a bill I disfavor killed. But it can also give birth to wind at the most inopportune time—a good law is repealed or weakened. And it can keep people in a position of power from which, over time and even unintentionally, they may weaken our system of government for the sake of a few issues.

Power politics can be perilous. It can produce short term gains but long term pain.


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