- Associated Press - Thursday, March 2, 2017

NASHVILLE, Tenn. (AP) - Legislation to outlaw abortions after a fetal heartbeat is detected by ultrasound may not be able to withstand a court challenge, the state’s attorney general says.

However, Attorney General Herbert Slatery said in a written opinion Wednesday that a provision in the proposal to force women to get an ultrasound before an abortion is constitutionally defensible.

The legislation, proposed by Rep. Micah Van Huss, R-Jonesborough, and Mae Beavers, R-Mt. Juliet, would make it a felony to have an abortion if the fetal heartbeat were detected, even if the fetus were not developed enough to live outside the uterus. That could be as early as six weeks.

The criminal charges would apply to both doctors performing the abortion and the women getting them. There is an exception in the legislation to allow a woman to have an abortion even if the heartbeat is detected if there is a medical emergency that threatens the life and health of the mother. The ultrasound would not have to be performed in the event of a medical emergency.

Slatery said the heartbeat provision might not withstand a legal challenge since similar legislation in other states has been blocked by federal courts. A 2013 North Dakota law that banned abortions after fetal heartbeat detection has since been struck down. A federal court has also barred Arkansas from enforcing its own fetal heartbeat law. The courts, Slatery noted, have ruled that the heartbeat laws place an undue burden on abortion access when the fetus is not viable.

Opponents of the legislation have also said a heartbeat can be detected before many women know they are pregnant.

A representative for Beavers said the senator would defer to Van Huss to speak. Van Huss said that he thinks the legislation could survive a court challenge because he figures President Donald Trump’s conservative judicial picks would be on his side.

“I think it’s possible, and that’s why I’m bringing the bill,” Van Huss said. “I think this is a fight worth fighting.”

The legal opinion, which is not binding, also said that the provision of the legislation that restricted abortions in medical emergencies to being performed by licensed physicians in a licensed hospital is constitutionally defensible.

“Long-standing United States Supreme Court precedent empowers states to restrict or prohibit abortions after fetal viability, if the law contains exceptions for pregnancies that endanger the woman’s life or health,” Slatery’s opinion said.

The legal opinion was requested by Sen. Brian Kelsey, R-Germantown.


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