Tennessee’s ‘Amendment One’ abortion bill is like Hobbes’ state of nature: Nasty, brutish and short

Other states are deciding you shouldn’t get 85 years for pot possession, or be kept from visiting your dying spouse in the hospital because his genitals look like yours. Meanwhile, Tennessee is busy making sure rape victims who get pregnant carry their attackers’ babies to term.

Our upcoming mid-term elections (Nov. 4) will play host to “the nation’s biggest abortion battle” in the form of a ballot initiative called Amendment One.

The background: In 2000, the TN Supreme Court determined that the state constitution contains an implicit “fundamental right to privacy” which covers a woman’s right to an abortion. This immediately struck down three of four extant restrictions on abortion (e.g. waiting periods, pre-operative counseling). It has since fended off the more egregious sorts of regulations seen in surrounding states.

Amendment One would add nullify this decision by adding the following language to the constitution (paraphrased): The constitution does not imply a right an abortion, after all, and therefore legislators (or the citizens, through their legislators) do have the right to restrict access to abortions.

Not enamored with the negative-liberty of the scripting, but one must be aware of one's audience

Not crazy about the ‘libertarian’ scripting, but it plays to an audience

Five Considerations

(1) The best reason to oppose Amendment One is straightforward: Because there is simply nothing wrong with having an abortion. It’s baffling to me how this fundamental point gets lost amid the fog of “government interference” and “individual choice” and the rest. (I’ll elaborate on the moral claim in my next an upcoming post.)

(2) The amendment would almost certainly be illegal, as it would simply override a court decision rather than rewriting or repealing the parts of the constitution on which it is based. This would be like adding a clause to the US Constitution saying there is no such thing as a right to bear arms—while keeping the Second Amendment intact.

(3) Amendment One is misleading in at least two ways:

The first sentence of the bill declares “the right [of lawmakers] to enact, amend, or repeal statutes regarding abortion.” Legally speaking, the bill was complete at this point. But it awkwardly goes on to list a number of non-exceptions to the right already defined—namely, “pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

To clarify, this is a list of cases for which legislators do not have to make exceptions in any future abortion restrictions. But given the language of the first sentence, there are an infinite number of other cases which could have been listed there. The bill could have said exceptions don’t have to be made for economic hardship, religious preference, eye color, or anything else. Why these particular three?

Note, most “pro-life” voters in TN support the three (and only these three) exemptions in the bill. Most voters everywhere do; the list is standard in these debates. The bill is designed in the hopes that causal voters will skim the bill, eye the standard exemptions, and assume “the[y] are either in place, or could easily be put in place.” (Polling data shows this is already happening.) In fact, the opposite is the case.

If you doubt the confusion is intentional, consider that the scripting, if clearly understood by all Tennesseans, would actually make the amendment less attractive—since most voters support the exemptions. The bill’s drafters know this, and they included it anyway. This makes them either phenomenally stupid, or cunning.

* * *

A second way the amendment misleads: We know the legislators backing the bill intend to use the Amendment as a wedge to regulate abortion out of existence, or as close to non-existent as possible. We know this because of their voting records, their statements, and the fact that they hired abolitionist pro-life lobbyists to draft the bill. But lately, they are keeping mum about their long-term intentions in the mainstream press.

As District 7 Senator Stacey “Shit for Brains” Campfield clumsily admitted:

After [Amendment 1] passes, I have several ideas but for fear of those ideas being used to help defeat Amendment 1, I will refrain from talking about those at this time. I doubt there are any ideas I would oppose that would restrict abortion in Tennessee.

The relatively innocuous language of the bill masks the full story. Fewer Tennesseans would cast a vote knowing it effectively licenses forcing women to, say, bear children that will kill them.

(4) Amendment supporters say that, thanks to that 2000 court decision, abortions are “unlicensed and unregulated” in Tennessee, and therefore pose undue risk for women. This, of course, is a lie. But let’s assume there is some truth to this claim.

A thing is not either “safe” or “unsafe.” Safety is a continuum; you have more or less of it, and tradeoffs with other values (efficiency, cost, etc.) are inevitable. A car that tops out at 35 miles an hour would be safer, but overall less desirable, than a faster but more dangerous one. Similarly, it may be the case that having abortions which are (a) less regulated, but more accessible, is preferable to abortions which are (b) more regulated, and therefore more safe, but less accessible.

But let’s be clear: Our supposedly “unregulated” abortion is still safer than actual childbirth. If women’s safety is your capstone concern, you should encourage as many abortions as possible.

(5) Amendment backers complain that TN’s relatively lax regulations make it an “abortion tourism” destination for residents of adjoining states.

First, if you want to argue that not restricting abortions causes more of them, fine—but the fact that the “more” happen to hail from another state is beside the point. Where they reside is no more relevant than how tallt hey are. (Actually, all things being equal, tourism of any kind is good for a state.)

But then, this is a terrible argument. It amounts to saying: We have to restrict abortions or…more people will have them. Well, duh. The same could be said of every activity from homicide to drinking tea. The real question is: What’s wrong with abortions in the first place? If you haven’t answered this question, simply pointing out the near-tautology that not restricting something makes more of it doesn’t provide an answer. And if you have made the case that abortions are bad, this adds nothing to it; it feels a bit like “piling on.”

[For more info and analysis on Amendment One, see here and here and the Vote No on One Facebook page.]

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A final word of caution: Your vote against Amendment One is wasted if you don’t also cast a vote for (someone, anyone, for) governor. To amend the state constitution, more than 50% of all people voting for governor have to vote for the bill. If 100 people vote for governor, the amendment has to get at least 51 votes. Any fewer, it will fail.

Therefore, it is in the interests of those who oppose the amendment that there be as many votes as possible for governor, to raise the 50% threshold to be met for passage. (On the other hand, it might be wise for those favoring the amendment not to cast a vote for governor.)

Write-in candidates do not count toward the threshold. Vote Isa Infante on the Greens ticket.

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