By Dave Andrusko
Yesterday, pressed for time, we provided readers with a brief overview of a major pro-life victory in Tennessee. Today we will go into more depth in discussing the decision by the U.S. Sixth Circuit Court of Appeals to reverse a decision by a district court judge and in the process completely reject a bogus pro-abortion effort to overturn the 2014 voter passage of Tennessee’s “Amendment 1.”
Passage of SJR 127, which placed the proposed constitutional amendment on the ballot, and Amendment 1 itself were the top priority and legislative goal of Tennessee Right to Life for more than 16 years. The key wording of Amendment 1 was found in the beginning: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” Amendment 1 passed 53% to 47%.
A constitutional amendment was the only way around Planned Parenthood of Middle Tennessee v. Sundquist, a radical pro-abortion decision by the Tennessee Supreme Court in 2000 which wrongly declared “A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.”
The impact of the decision was enormous. Common sense pro-life protections were immediately stripped from state law books, including informed consent for women considering abortion, a 48-hour waiting period and requirements that second trimester abortions be performed in equipped and regulated hospitals rather than abortion facilities.
Tennessee became an abortion haven; one in four abortions is performed on women who live outside of the Volunteer State.
Pro-abortion challengers, led by Planned Parenthood, argued that Tennessee’s “long-established process for counting votes and ratifying amendments to the state constitution somehow violated the rights of pro-abortion voters who opposed pro-life Amendment 1,” to quote Brian Harris, President of Tennessee Right to Life. The amendment required voter approval by a majority of those voting in the governor’s election to become part of the Constitution. So if someone voted in the governor’s race but did not cast a “yes” vote on Amendment 1, it effectively was a “no.”
This process was not new—as Mr. Harris pointed out—and well publicized prior to the election. But Planned Parenthood persuaded Judge Kevin Sharp to rule that as many as 80,000 votes cast in the 2014 vote on Amendment 1should be thrown out. This came in April 2016, just after Circuit Court Judge Michael Binkley agreed with the state that Tennessee election officials’ method of counting votes was consistent with the state constitution.
Which brings us to yesterday’s 27-page decision by the U.S. Sixth Circuit Court of Appeals. In summary, the question before the court were “[W]hether the votes were counted incorrectly, and whether the vote counting method impermissibly infringed some voters’ rights.” Judges David McKeague, Richard Suhrheinrich, and Ronald Lee Gilman responded, “We answer ‘no’ to both questions and thus give effect to the express will of the people.”
After a long discussion of (among much else) Standard of Review, Plain Language Theory, Voter -Dilution Theory, and Equal Protection, the court concluded, “Plaintiffs’ arguments amount to little more than a complaint that the campaigns in support of Amendment 1, operating within the framework established by state law, turned out to be more successful than the campaigns against Amendment 1.”