by Glenn Harlan Reynolds

In November of 2014, Tennessee voters adopted the following amendment to the Tennessee constitution:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.[1]

This amendment was a popular response to the Tennessee Supreme Court’s ruling in Planned Parenthood of Middle Tennessee v. Sundquist,[2] which established a right to abortion under the Tennessee constitution—a right somewhat broader than that found by the United States Supreme Court under the United States Constitution.

The impact of the new language on abortion appears largely straightforward: shifting control of the issue from the Tennessee Supreme Court to the General Assembly. But its adoption raises a related question. The Tennessee Supreme Court’s decision in Planned Parenthood of Middle Tennessee came at the end of a lengthy series of decisions concerning the Tennessee constitution’s right of privacy, which addressed such topics as parental rights to frozen embryos, the power of the state to pass laws criminalizing homosexual sodomy, grandparent visitation rights, and even the possession of guns in the parental home. The treatment of abortion in Planned Parenthood of Middle Tennessee was not a departure, but was instead the logical outgrowth of these earlier cases. But with that decision removed, do the earlier cases retain their authority? Or does the “penumbra” of this new amendment to the Tennessee constitution call those decisions into question as well?

In the pages that follow, I will briefly revisit those earlier decisions, review the adoption of this new amendment, and then discuss what impact—if any—this change has on Tennessee courts’ earlier jurisprudence of privacy, procreation, and parenting.

          [1].    Tenn. Const. art. I, § 36. The proposed state constitutional amendment appeared as “Amendment 1” on the ballot. Tennessee Legislative Powers Regarding Abortion, Amendment 1 (2014), BallotPedia, http://ballotpedia.org/Tennessee_Legislative_Powers_Regarding_Abortion,_Amendment_1_%282014%29.

          [2].    38 S.W.3d 1 (Tenn. 2000).

 

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