Tennessee Right to Life savors victory and looks to next legislative goals

For decades, Tennessee Right to Life has helped set the anti-abortion agenda in Tennessee, providing lawmakers with the bill language and backing to successfully enact abortion restrictions. In recent years, restrictions have included waiting periods, layers of added regulations on abortion clinics, required cremation or burial of fetal remains and prohibitions on prescribing abortion medications remotely and delivering abortion medications through the mail.

The organization, headquartered in Nashville, also led the campaign in 2014 for Amendment 1, a Constitutional Amendment approved by voters that stripped the right to an abortion from the state’s Constitution.

And in 2019, Tennessee Right to Life crafted the language and engaged in sustained lobbying for what ultimately became the “Human Life Protection Act,” the so-called “trigger” law that is expected to take effect in a matter of weeks, banning abortion in Tennessee now that the U.S. Supreme Court has overturned nearly 50-years of abortion rights.

The court’s decision in Dobbs v Jackson Women’s Health Organization on June 24, concluded the U.S. Constitution does not confer a right to abortion, leaving to individual states the right to set, or eliminate, laws on abortion access.

In a Q and A with Tennessee Lookout, edited for clarity and length, Tennessee’s Right to Life’s legal counsel and lobbyist Will Brewer spelled out what the organization is setting its sights on next in Tennessee.

What is next on Right to Life’s abortion agenda?

We don’t know what bills we’re going to carry next, but we’re certainly in discussions about that. We are looking at what a post-Dobbs world looks like right now and what issues are popping up, some that we anticipated and some that we did not.

For instance, we strongly supported the bill in this year’s previous session to require that a doctor be physically present to prescribe the abortion pill, and to dispense it as well. That was in anticipation of this day

We knew that, once abortions were done away, the abortion pill would be the front line of this war. We don’t want Roe tele-med abortion pills being shipped in from other states and other countries, because we now live in this Zoom, Amazon Prime world of tele-health and next-day delivery. That was in anticipation of what a post-Dobbs Tennessee looks like.

An example of something that wasn’t necessarily anticipated was businesses all across the country, and certainly in the state of Tennessee, offering to subsidize their employees’ out-of-state abortion travel

And, frankly, I don’t understand why a company – well I do understand with the business side of it – if you’re an employee of a company that’s going to subsidize your abortion, but not subsidize your childbirth, I think I would second-guess who my employer is and why I am working for them. 

What do you mean by that? Many of these employers do provide healthcare coverage that covers childbirth. 

They offer health insurance, but this seems to be a cash in hand type transaction. It’s not through an intermediary, like a insurance company. It’s really a type of  – I’m not going to use the word bonus – but it’s an extra type of pay. (Editor’s note: most employers have not specified the exact mechanism of providing abortion travel coverage)

There’s been all kinds of publicity for these companies that are subsidizing their employee’s abortions, and they’re not offering the same kind of cash-in-hand for employees that are having children, so I think that’s something we need to look at and figure out how we deal with that.

Brewer later sent this clarification via email:

Many of the employers who have announced abortion funding for employees have hourly employees, many of whom don’t receive insurance from the employer. Therefore, it truly is an imbalance to subsidize abortions but not child birth. Especially considering that an hourly worker who has an abortion and gets a subsidy will presumably be back to making an hourly wage long before an hourly worker who has a baby. So, there is a subsidy on top of presumably more workable hours for employees that choose abortion. This seems unfair to the employee who chooses to give birth.

Is there specific legislation Tennessee Right to Life has in mind to forestall these employers’ offers of abortion travel assistance?

We’ve been in talks with legislators about dealing with it, but have no language yet. 

What other proposed legislation might be on its way: 

There’s been so much slanted argument that the pro-life community doesn’t care for the child once it’s born (that) we’re all for the child in the womb and once that child is born…that’s not true.

We have over 300 crisis pregnancy centers and pregnancy resource centers in the state of Tennessee alone that every single day are working above and beyond the call of duty to counsel women who are choosing life — in some instances offering them financial aid for the medical expenses and the care of child, who are offering food and clothes. We need to continue that support of those organizations. 

Let’s figure out family leave once and for all. Let’s figure out how Tennessee as a state government can continue to  support women who are choosing life. I know Gov. Bill Lee is strong on that. He’s certainly strong on improving the foster care system and making Tennessee the easiest state in the country to adopt in.

Are you saying Tennessee Right to Life will support legislation that requires or extends additional family leave policies for employers? 

I don’t have specific legislation in hand right now, but those are certainly issues we want to continue to advocate for and work out solutions for. Those are discussions that need to be had. Improving family leave is a priority

Stacy Dunn, Tennessee Right to Life’s president, said during a recent press conference that you would work to “protect our women and girls from marketing efforts of out of state abortion facilities who will try to lure women and their money to their unsafe and unregulated abortion facilities in their state.” Are you preparing legislation that would address this?

That’s an issue we are concerned with. I don’t have a strategy for how to legislate around that. I think there are interstate commerce issues involved. I think there are free speech issues involved. It’s certainly an issue we want to look at to see if there’s a way to address that situation.

Nashville District Attorney Glenn Funk and some district attorney candidates have indicated they would either not enforce the trigger law or make it a low priority. What’s your response?

I’m an attorney and at one point I worked in the prosecutor’s office.  I think those types of folks need to look at the oath they swore on the day they entered office. They swore an oath to uphold the constitution of the state of Tennessee, and that constitution says there is no right to abortion in this state, which allows for laws to be enacted such as the heartbeat ban and the trigger law. In order to effectively do their job they need to make sure these laws are prosecuted to the fullest extent. If they’re going to deal in politics they need to pick a different type of political office

If these types of folks are going to play this game, get into a more political role rather than meddle with the dignity of the office of district attorney

In the past, abortion restrictions have included exceptions for rape and incest. Why does the trigger law exclude these exceptions?

There are two layers of that: first of all the trigger law merely puts back into effect 1972’s language but also philosophically a life is a life regardless of the situation that led to it’s conception, so let’s show that mother love and compassion and not create a double atrocity by terminating the life that’s inside of her on top of the horrific instances that have already occurred.

Also in past abortion restrictions, you have included language making a clear exception for the “life of the mother.” In the trigger law, it says doctors have an “affirmative defense” to prosecution if the abortion is done to save that life. What is the logic in having that kind of language instead of an outright exception? 

The logic is that it’s not really a relevant part of the statute. The statute deals with elective abortions. It does not deal with medical procedures that are intended to treat the mother’s condition or so to say to save her life. If you treat the mother’s condition and the termination of the baby is a byproduct of the treatment, that is not an elective abortion and, therefore, it’s not covered under this statute

So really the affirmative defense statute is an added protection for the physician but should really never come into play, because it’s not an elective abortion.

Miscarriages and ectopic pregnancies are not covered under this statute. They are fully protected. If I had the mechanism to shout it from the rooftops, I would. The statute only deals with elective abortions, so the life of the mother is really not that relevant. It is in there as an added protective measure for the doctor and it’s in his professional judgement whether that was the nature of the operation, so I really don’t see a criminal investigation going past that, so the affirmative defense language is what it is. It is an added defense against abortions that are after the fact claimed to save the life of the mother. Once again, the law only covers elective abortions. If it’s saving the life of the mother it’s not an elective abortion. It’s not covered by the statute

I do want to reiterate it’s really frustrated us in the past week there’s been so much attention spent on miscarriages and ectopic pregnancies. That’s not what this law deals with. And frankly I think it’s irresponsible of the folks that are claiming that to claim it because you’re hindering women from seeking treatment for those issues. 

Right to Life was the author, and key lobbyist, for the “trigger law,” which is set to take effect by mid-August, according to the Tennessee Attorney General. But we currently have the “heartbeat” law in effect, banning abortions after about 6 weeks of pregnancy. Right to Life opposed the 6-week ban at the time it was being debated (2020). Can you explain that history?

At that time, which it seems like a lifetime ago, we didn’t feel like we had the justices on the court to uphold something like a heartbeat law. (Editor’s note: Physicians have said terms like “heartbeat law” are misleading.) And we knew states like Mississippi and plenty of other states already had cases in the pipeline to make it there first, so we didn’t feel like it was an appropriate use of taxpayer money to fund a lawsuit that would either be struck down eventually or be beaten by other states in the race to the Supreme Court.

We’re sitting here today with Roe overturned and three new justices — not including Justice (Katenji) Brown Jackson – but with (Neil) Gorsuch and (Brett) Kavanaugh and (Amy Coney) Barrett. Gorsuch and Kavanaugh were brand new. Barrett wasn’t even in the thinking at the time. Justice Ginsburg was on the court.

We had no idea how Gorsuch and Kavanaugh would rule. Certainly not without Barrett as kind of the supermajority swing justice. Today it’s easy to look back and say, ‘how could you not have known this would happen?’ But in 2019, it was a completely different universe we were in.

Our thinking, which has been the thinking of our organization for as long as we’ve existed, is to take a strategic approach to the eventual overturning of Roe, and we didn’t feel like the heartbeat ban was strategic

If the day comes when Roe is overturned, you’re either going to have a full-on ban or you’re going to have a six-week ban, so why would anyone settle for a 6 week ban? Until that day comes, we knew the heartbeat bill would be enjoined.

Now we sit in a world where we get to enjoy the heartbeat bill for six weeks, before the trigger law takes effect. And that’s great and I’m certainly glad to have the 6 week law in effect now. We’re grateful we have both in effect now, but are certainly grateful at the end of the day in August, the trigger ban will take full effect and supersede the heartbeat law.

What else is might be next for Tennessee Right to Life?

I really want to reiterate we have been in the business of counseling and care and financial aid and offering food and clothing and whatever else necessary to mothers who choose life and helping them and their babies thrive, and we will continue to do that. 

This is not a shift in focus or a new strategy on our part. This is something that we’ve done for decades and we look forward to continue to do, that we look forward to continuing to work with the governor and the legislature on doing.