What would happen in Tennessee if the Supreme Court overturns abortion law?
If the U.S. Supreme Court overturns longstanding abortion protections in place since 1973, a Tennessee law will automatically take effect and ban almost all abortions in the state — but not immediately.
POLITICO obtained a copy of a draft majority opinion authored by Justice Samuel Alito. A document leak is virtually unheard of for the Supreme Court and will likely destroy trust among the justices and staff. In the opinion, Alito writes, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The decision was not expected to be released for another month or two, and POLITICO warns that the decision is not final. But if the high court overturns Roe v. Wade, Tennessee would join more than two dozen states expected to outlaw abortion or return the bans already on the books. Tennessee has what’s known as a “trigger ban,” which was passed in 2019 as the “Human Life Protection Act.”
The 2019 law says that if Roe v. Wade is overturned “in whole or in part,” then the law becomes effective 30 days later. A provision was added to the final version of the law requiring the Tennessee Attorney General, currently Republican Herbert Slatery, to make a decision about whether the Supreme Court’s decision indeed triggers the law.
Attorney Paul Linton, who helped draft Tennessee’s law, says the 30-day period was intended for legal challenges to occur — and he expects resistance.
“Someone’s going to go to court and say, well, the attorney general says this has taken place, but I don’t think it has and I want a court to decide that. That would certainly be an appropriate thing for a court to decide.”
This period was intended to allow for legal challenges which anti-abortion advocates expect.
If enacted, the law will have very few exceptions. They include if the pregnancy endangers the life of the mother, though the language specifically rules out any exception for mental health — even in instances of threatened self-harm.
The person receiving an illegal abortion would not be subject to prosecution. But anyone performing the procedure — including prescribing medication — could be charged with a Class C felony, including prison time and a fine of up to $10,000.
Some states where abortion will remain legal have been actively preparing to help make medication more accessible in states where abortion will be illegal. This year, Tennessee tightened its own ban on telemedicine abortions, though Will Brewer, legal counsel for Tennessee Right to Life, says it’s unclear whether prosecutors in the state could go after providers elsewhere who prescribe medication and send it to patients in Tennessee.
“I think the battleground, so to speak, will shift,” Brewer said prior to the publishing of the leaked opinion. “I think this will be an issue that will continue to be prevalent.”