- Associated Press - Thursday, April 6, 2017

NASHVILLE, Tenn. (AP) - Tennessee’s attorney general has questioned the constitutionality of current legislative proposals that would ban most abortions after 20 weeks.

The opinion from Attorney General Herbert H. Slatery III, the top law enforcement official in a conservative Republican state, is the second this year to raise concerns over whether an abortion ban bill is constitutional. Last month, Slatery wrote that a push to outlaw most abortions after a fetal heartbeat is detectable, as early as six weeks, may not be able to withstand a court challenge.

Slatery is a former top legal adviser to Republican Gov. Bill Haslam, but was named to his post by the Supreme Court. Tennessee is the only state where the attorney general is appointed by the state’s high court.

The opinion looks into a bill by two Republican lawmakers that would outlaw abortion after 20 weeks in gestational age, unless the doctor determines through a testing mechanism that the fetus is not viable. The test wouldn’t be required in a medical emergency.

Additionally, a post-viability abortion, defined as a minimum of 24 weeks gestational age, could only be performed by a licensed physician who determines that the fetus is not viable, or that the abortion would prevent the death or irreversible impairment of a major body function of the mother.

For doctors, violating the post-viability ban would be a Class C felony. Violating the viability testing requirement would be a Class A misdemeanor.

Slatery’s opinion says both components are “constitutionally suspect” under existing 6th Circuit Court of Appeals precedent, pointing to similar post-viability regulations in Ohio that were struck down in court.

Without proving the doctor has “guilty knowledge” or recklessness, Slatery wrote that “such statutes impermissibly subject a physician to criminal liability even though he was acting in good faith in determining whether a medical emergency or medical necessity exists.”

The opinion also says the bill could be unconstitutional because it does not account for severe mental and emotional harm when considering if an abortion is medically necessary.

The bill’s ban on abortions would still apply when a woman claims, or it is diagnosed, that her mental health will make her do something to kill herself or irreversibly impair a major bodily function.

The legislation by Rep. Matthew Hill, a Republican from Jonesborough, and Sen. Joey Hensley, a Republican from Hohenwald, has passed a House subcommittee and committee.

Another similar bill would prohibit abortions at a gestational age of 20 weeks, unless a doctor deems abortion necessary to preserve the mother’s life or health. Slatery’s opinion says the 9th Circuit Court of Appeals blocked a similar law in Arizona.

The bill also would require abortions after three months, but before 20 weeks, to be performed in a state-licensed hospital by a licensed physician. The opinion says this would be constitutionally suspect.

That legislation, sponsored by Republican Sen. Mae Beavers of Mt. Juliet and Republican Rep. Terri Lynn Weaver of Lancaster, has not been considered in committee yet this year.

The Guttmacher Institute, a research group that supports abortion rights, says 16 states have some prohibitions on abortion at about 20 weeks post-fertilization.

Republican Rep. Bob Ramsey of Maryville requested the attorney general’s opinion.


This story has been corrected to reflect that the opinion was filed last week, not Thursday and that Haslam is still governor.

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