Let's Play Armchair Lawyer about SJR127



Now, I know this conversation has the potential to devolve into "Abortions are bad; abortions are evil." But before it heads that way, I hope we can talk seriously about whether SJR127 can do what its proponents claim it can do — offer the state legislature a way to place more restrictions on abortion than we currently have.

The wording of what would become a constitutional amendment reads:

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.

Now, this seems straight-forward enough, but I've been reading through Planned Parenthood v. Sundquist (which I invite you to peruse), and that's not exactly what the court found. It's not that there's just some implicit right to an abortion in the state constitution, some loophole that SJR127 supporters can close. It's that people in the state of Tennessee have more of a state-constitutional right to privacy than found at the federal level.

So, SJR127 doesn't close a loophole. It brings the state constitution into conflict with itself, with it being well-established that we have a strong right to privacy, under which we have certain kinds of reproductive and sexual freedoms including abortions and, if SJR127 becomes a part of the state constitution, no right to abortions.

I've done a lot of digging, and I've asked as many smart people as I know, and no one seems to know what happens when a state constitution contradicts itself. When laws contradict, as was set out in Madison v. Marbury, the courts decide which one is constitutional. But when the state constitution contradicts itself? That seems to be an open question.

We do already have a matter of conflict in the state constitution — Article 1, Section 3 grants Tennesseans sweeping religious freedoms, but Article 9, Sections 1 and 2 bar ministers and atheists from the state legislature. Now obviously, we don't have to do anything about that contradiction because the federal constitution is in place — as long as you have a federal right to freedom of religion, Article 9, Sections 1 & 2 can never actually be enforced.

So this contradiction doesn't provide any guidance (though it does suggest that you can have "active" parts of a state constitution that aren't in effect).

I think, and correct me if I'm wrong, dear readers, that what this means is that SJR127 is yet another jobs bill for the ACLU. If the state constitution contradicts itself — providing a level of privacy beyond what the federal constitution provides, a right to privacy so firmly stated that it also covers a right to an abortion, AND it doesn't provide any right to an abortion (especially since SJR127 completely sidesteps the right to privacy issue, probably because anti-abortion folks know that privacy from the government is popular), this contradiction is going to have to be litigated. Both things cannot be true.

So, it's possible that a court could find that the constitutional non-right to an abortion outweighs the constitutional right to privacy. But it'd be just as easy for a court to find that, even if women no longer have a specific right to an abortion in the constitution, the right to privacy still protects them from state meddling.

But I'm throwing it open to you, dear Pith readers. Does anyone know what happens when a state constitution contradicts itself? Will this end up tied up in the courts forever? Or will SJR 127 just sit there, like the first two sections of Article 9, looking all bad-ass but changing nothing? And why didn't the original authors of SJR 127 pay enough attention to Planned Parenthood v. Sundquist to address the privacy issue?

I mean, my god, if the courts rule that privacy rights make abortion non-rights moot, are we going to have to go through this whole process again to amend the state constitution to curtail women's privacy rights? Will it never end?

Comments (17)

Showing 1-17 of 17

Add a comment

Add a comment