NASHVILLE — A wide-ranging abortion restriction bill, once believed to be scrapped for the year, will now become law in Tennessee.
The bill, part of Gov. Bill Lee's legislative agenda that was largely abandoned earlier this spring amid the coronavirus pandemic, found new life through last-minute budget negotiations between the House and Senate on Thursday.
It passed the Senate 23-5 just after 12:30 a.m. Friday on a party-line vote.
In addition to banning abortions after the point a fetal heartbeat can be detected, which is as early as six weeks, the legislation also prohibits the procedure:If the doctor knows that the woman is seeking an abortion because of the child's sex or race. If the doctor knows the woman is seeking an abortion due to to a diagnosis of Down syndrome. For juveniles in custody of the Department of Children's Services, including removing the current option to petition a judge for permission.
While there is an exception to the restrictions if a woman's life is in danger, there will be no exceptions for rape or incest.
The legislation was also amended to require that abortion clinics post a sign in the waiting room and in patient rooms informing people that it may be possible to reverse a chemical abortion, and impose a fine of $10,000 for failing to do so.
Abortion rights organizations have previously vowed to challenge the legislation. Similar six-week bans have been struck down in Mississippi, Ohio and other states.
Last-minute passage despite earlier signals
The bill was passed with Senate rules suspended, as it wasn't on the chamber's legislative calendar, and without any members of the public present.
"This is a 60-page bill that we're bringing up at midnight," said Senate Minority Leader Jeff Yarbro, D-Nashville. "This is the most notable bill we'll pass this year. We're doing it in a closed Capitol."
Republicans in the legislature have said they hope the legislation will propel their anti-abortion fight to the U.S. Supreme Court, though Tennessee's approach, similar to legislation passed in Missouri, is not backed by National Right to Life or most other major anti-abortion groups.
While House leadership had maintained in recent weeks that they planned to move forward with the bill despite Lee saying it was no longer a priority while state government focused on the pandemic, the Senate had dug in its heels, arguing they would not pass it without the governor requesting them to do so.
But that changed in Thursday's give-and-take between chambers on the budget.
Despite the House always planning on having passed the bill, Rep. Gloria Johnson, D-Knoxville, spoke out on the floor while the Senate debated the legislation a chamber over.
"I feel like there was a bargain made on my reproductive health rights in order to get the budget passed," Johnson said.
Democrat: 'We're going to be pushing them into the alleys'
Unlike last year's heartbeat bill, which passed in the House but did not receive support from Lt. Gov. Randy McNally, R-Oak Ridge, in the Senate, the new approach includes the additional abortion restrictions and a severability clause.
If the courts strike down the six-week ban, in conjunction with the detection of a fetal heartbeat, the legislation goes on to automatically enact abortion bans at eight, 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks of gestation.
It would also make it a Class C felony for a doctor to perform an abortion in any of those situations, and the physician must also:Determine and inform the mother of the gestational age of the fetus. Allow the woman to hear the fetal heartbeat and explain the location of the unborn child within the uterus. Conduct an ultrasound and display the images to the mother. Provide an explanation of the fetus's dimensions and which external body parts and internal organs are present and visible.
Sen. Brenda Gilmore, D-Nashville, argued that rich woman would still be able to travel to other states to have abortions.
"But poor mothers, we're going to be pushing them into the alleys like it was years and years ago and still endangering them," Gilmore said.
The governor announced the initiative in January, surrounded by dozens of Republican lawmakers who joined him in supporting the measure.
ACLU promises legal challenge
McNally has said he believes the current version of the heartbeat bill will hold up in court, despite raising concerns last year over constitutionality. It's unclear how the new legislation would have a better chance of passing constitutional muster.
"As promised, we will see them in court," said Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee in a statement early Friday morning.
“The Tennessee General Assembly’s passage of this dangerous, flatly unconstitutional bill is unacceptable," Weinberg said. "Lawmakers used this measure in a game of political maneuvering to pass the state budget — pushing it through without regard for the actual Tennesseans who will be denied access to the care they need, including abortion."
Adam Kleinheider, spokesman for McNally, said the legislation had previously been a priority of the Senate before the pandemic.
"The bill was a result of an exhaustive public Senate summer study and thoroughly vetted in committee this year," Kleinheider said in a statement. "Due to conflicting House and Senate versions and the prospect of a difficult and time intensive debate, the Senate did not place it on a floor calendar during the first weeks of this limited budget-focused session."
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