The U.S. Supreme Court is on the verge of overturning the landmark 1973 Roe v Wade decision legalizing abortion across the nation, according to a draft opinion obtained by Politico.
The published draft has set off a renewed round of fierce controversy around one of the nation’s most divisive issues.
Here’s what to know about it and how it could impact Tennessee.
Did the court overturn the Roe v Wade decision?
No. Abortion is still legal in all 50 states.
The justices are set to release a ruling in a lawsuit challenging a Mississippi law this summer. The suit could act as a direct challenge to the landmark 1973 Roe v. Wade decision that found abortion rights are constitutionally protected.
Politico reported late Monday that a leaked draft opinion written by Justice Samuel Alito would overturn the decision. .
On Tuesday, Chief Justice John Roberts issued a statement confirming the authenticity of the draft opinion and ordered an investigation into what he called an “egregious breach of trust.”
“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” Roberts said.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” he said in the written statement.
He added: “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
If Roe is overturned, does that automatically mean abortion is illegal?
No. Overturning Roe returns the decision on reproductive health care access back to the states.
Voters amended Tennessee’s state constitution in 2014 to specifically remove access to abortion as a fundamental right in the state.
The state in 2019 also passed a “trigger law” that would institute a de facto abortion ban should the Supreme Court overturn its Roe decision. If the law is activated, the Attorney General would notify the Tennessee Code Commission.
Then, within 30 days of that notice, the state would officially have an abortion ban in place. The measure would make it a felony for a doctor to perform an abortion, while women seeking abortions would be exempt from prosecution.
Research shows attacks on the foundation of federal abortion access protections have rapidly increased since 2011, according to the Guttmacher Institute.
More anti-abortion laws — 90 of them — were passed nationwide in the first half of 2021 than in any year since the Roe v. Wade decision was handed down in 1973, research has shown.
The Supreme Court ruled in Roe v. Wade that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester.
Years later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb, which is about 24 weeks.
Since then, states have pushed to define viability at earlier and earlier stages, in many cases now tying it to the moment a “fetal heartbeat” can be detected.
Is abortion legal in Tennessee?
Although Tennessee has several restrictive abortion access laws on the books, it remains legal to terminate a pregnancy in the state. The state’s new abortion laws are being challenged in federal court.
Is abortion legal in Nashville?
Nashville does not have separate reproductive health care laws on its books from those of the state.
The city’s top prosecutor, Davidson County District Attorney Glenn Funk, issued a statement hours after the leaked opinion began circulating. In the fall of 2020, Funk declared he would not pursue criminal charges against any patient or doctor for seeking or performing a procedure at their request.
“With regard to reproductive issues, the criminal law must not be used by the State to exercise control over a woman’s body,” he wrote in 2020.
On Monday, the eve of election day where he hoped to hold on to the seat, he stood by the statement.
“I am appalled that this assault on a woman’s personal health decisions is in jeopardy,” Funk said in an emailed statement Monday evening.
Funk’s two opponents also criticized the draft ruling.
Sara Beth Myers, a former federal prosecutor, said she was “outraged” at the possible ruling.
“I proudly support a woman’s right to access safe abortion care…There is a right to privacy in the Constitution that protects the right to an abortion, and as District Attorney I will never use the law to violate someone’s civil rights,” Myers wrote in a statement posted on social media Tuesday morning.
P. Danielle Nellis, a former assistant district attorney now in private practice, echoed the others in the rac.
“I stand with women and our right to exercise autonomy over our own bodies,” Nellis wrote in a statement posted to social media Tuesday afternoon. “I stand with women as we exercise that autonomy whether it be through choice and family planning, escaping a domestic violence situation, healing after a sexual assault, or existing without the interference of politics that place us at risk in so many situations.”
Neither Myers nor Nellis issued a statement specifying whether they would prosecute charges under a ban.
What are Tennessee’s abortion laws?
A slate of restrictive abortion laws have led Tennessee’s legislative agenda for the past few years, including a comprehensive package passed in 2020 with full support from Gov. Bill Lee.
The 6th Circuit Court of Appeals last summer upheld a 48-hour waiting period passed under previous Gov. Bill Haslam that had lingered in the courts since 2015.
The law requires a patient seeking an abortion first to be counseled by a doctor in-person and then wait at least 48 hours before returning for an abortion procedure.
Tennessee’s 2020 laws include requiring abortion clinics to post a sign in the waiting area and in patient rooms informing people that it may be possible to reverse a medication abortion.
While there is an exception to the restrictions if a woman’s life is in danger, there are no exceptions for rape or incest.
If the courts strike down the six-week ban, before most people know they are pregnant, the 2020 legislation automatically enacts cascading abortion bans in conjunction with the detection of a fetal heartbeat at eight, 10, 12, 15, 18, 20, 21, 22, 23 and 24 weeks of gestation. The law also prohibits abortions if the doctor knows the patient is seeking the procedure due to the fetus’ sex, race or Down syndrome diagnosis.
The laws remain tied up in the courts. In February, a federal appeals court reinstated the so-called reason ban.
The 6th U.S. Circuit Court of Appeals granted the request by the Tennessee attorney general’s office to reverse course and temporarily allow the so-called reason ban to be enforced. The 6th Circuit had blocked that provision in September after previously allowing it to go into effect in 2020.
Tennessee bans the use of telehealth for medication abortion and limits when state and public insurance can cover abortion services.
Lt. Gov. Randy McNally, R-Oak Ridge, said in a Tuesday statement the General Assembly has passed some of the most “aggressive pro-life legislation” in the nation.
“We have challenged current court precedent with Gov. Lee’s landmark heartbeat bill and we have prepared for an overturn of Roe by passing a trigger law that goes into effect immediately upon reversal,” McNally said. “Whatever the court ultimately decides, Tennessee will continue to be one of the most pro-life states in the nation — whether under the current court precedent or a new one.”
Are there abortion clinics in Tennessee?
But with fewer than a dozen clinics across Tennessee that offer services — and similarly few in neighboring states — accessing abortion care may be out of reach for low-income or rural pregnant women who struggle to get in to see a doctor, let alone at short notice.
Nonpartisan organization Healthy and Free Tennessee maintains a list of abortion care providers, including:
- CHOICES Memphis Center for Reproductive Health
- Planned Parenthood – Memphis Health Center
- Mountain Access Brigade
- Knoxville Center For Reproductive Health
- Planned Parenthood – Knoxville Health Center
- Bristol Regional Women’s Center
- carafem Health Center Nashville
- Planned Parenthood – Nashville Health Center
Do Americans support abortion?
About 49% of the nation said that abortion should be “legal and accessible” in USA TODAY/Ipsos poll published this month. Only about a third of Republicans felt that way, compared with 73% of Democrats.
The Associated Press contributed to this report.
Melissa Brown contributed.