One of the most consequential victories in the country last night had nothing to do with any candidate for any seat. I am referring, of course, to ballot measure 1 in Tennessee, which sought to amend the Tennessee constitution to right a judicial injustice.
The Tennessee constitution, like the Federal constitution, says nothing about abortion one way or another. Properly speaking, the issue ought to be a matter for the legislative process to hammer out. But the ACLU prevailed upon the Tennessee Supreme Court in 2003 to find an as-yet-undiscovered right to abortion in the Tennessee constitution that was somehow of necessity greater than the (likewise nonexistent) right to abortion in the Federal constitution. Relying on this precedent, Tennessee courts have struck down literally all regulations on the practice of abortion that have been passed by the Tennessee legislature.
Enter Kermit Gosnell on the national scene. As the nation watched in horror, it was revealed that a late-term abortion practitioner in Philadelphia had been killing live babies, and that his health practices endangered the health and safety of the women who came to him for abortions. The damning indictment of Gosnell and his clinic revealed that Gosnell was not just a monster who existed in a vacuum – he was a monster who existed specifically because the State of Pennsylvania utterly failed to exercise any oversight of Gosnell’s clinic for nakedly political reasons. In the wake of these revelations, many states (including Tennessee) sought to regulate the medical aspects of the practice of abortion in the same way they regulated other outpatient surgery clinics – requiring such clinics to have hallways wide enough to accomodate stretchers (one woman died in Gosnell’s clinic in part because his hallways were too narrow for EMS personnel to transfer her to a gurney), to be subject to regular health inspections, and to require abortion clinics to have at least one physician on staff to have admitting privileges at a local hospital. These common sense regulations were likewise struck down by the Tennessee Supreme Court.
Accordingly, the voters of Tennessee sought to amend the Tennessee constitution merely to make clear that the Tennessee State Constitution is silent about the practice of abortion and that it does not require taxpayer funding of abortion. Nothing in Amendment 1 forbade any abortions, or changed the fact that abortion is still a protected practice under the Federal constitution, it merely …read more