In 2017, was a Tennessee bill banning abortion after a detectable fetal heartbeat constitutional?

Plain-English summary

In January 2017, the Tennessee General Assembly was considering SB 244/HB 108, which would have made two big changes to the state's criminal abortion statute. First, it would have required a physician, absent a medical emergency, to perform an ultrasound before any abortion and to inform the pregnant woman of any detected fetal heartbeat. Second, it would have prohibited an abortion after detection of a fetal heartbeat and before viability, except in medical emergencies.

Senator Brian Kelsey asked whether the bill was constitutional. The AG split the answer. The ultrasound and informed-consent provisions were constitutionally defensible, drawing on the Fifth Circuit's decision in Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012), which upheld a similar Texas regime. The post-viability rule (allowing abortion only in a medical emergency, by a licensed physician, in a licensed hospital) was also defensible under long-standing Supreme Court precedent.

But the heartbeat ban itself was a different story. The Eighth Circuit had already invalidated a virtually identical North Dakota law in MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), and an Arkansas 12-week heartbeat statute in Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015). Those decisions read Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Gonzales v. Carhart, 550 U.S. 124 (2007), to bar pre-viability bans, full stop. Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), reaffirmed the undue-burden framework. Under that framework, a heartbeat detected at roughly six to eight weeks is far earlier than viability at roughly 24 weeks, so the ban necessarily prohibited a "very significant percentage" of pre-viability abortions. The AG read that as constitutionally suspect, while acknowledging the analysis only described the law as it stood in 2017.

Currency note

This opinion was issued in 2017 and analyzed federal constitutional doctrine that has since changed dramatically. Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), were overruled by Dobbs v. Jackson Women's Health Organization in 2022, removing the federal "undue burden" framework on which this opinion rests. Tennessee's current abortion law is governed by a different statutory and constitutional landscape. Treat this page as historical context only, not as a guide to current law. Verify present-day Tennessee and federal law before relying on any rule discussed here.

Background and statutory framework

SB 244/HB 108 was part of a wave of state "heartbeat" bills introduced in 2016 and 2017. The strategy was overt: pass a statute prohibiting abortion at the earliest point of detectable fetal cardiac activity, accept that it would be enjoined under Casey and progeny, and try to set up Supreme Court review. The Tennessee bill paralleled North Dakota's 2013 statute that was struck down in MKB Mgmt. Corp. v. Stenehjem.

Two operational changes to Tenn. Code Ann. § 39-15-201. First, an ultrasound requirement: the physician would have had to determine, absent a medical emergency, whether the fetus had a detectable heartbeat. Results would have been recorded in the medical record, the woman would have been informed in writing of any detected heartbeat, and the woman would have been given the option to view or hear the heartbeat. (The bill expressly did not require a transvaginal ultrasound.)

Second, a pre-viability prohibition: an abortion after detection of a fetal heartbeat would have been prohibited unless there was a "medical emergency" as defined in Tenn. Code Ann. § 39-15-202(f)(1). The medical-emergency exception would have required physicians to document the specific condition, the procedure, and the medical rationale.

The federal framework as it stood in 2017. Under Casey, a state could not prohibit a woman from making the ultimate decision to terminate a pregnancy before viability, and could not impose an "undue burden" defined as a substantial obstacle in the path of a woman seeking a pre-viability abortion. After viability, states had power to restrict and even prohibit abortion if exceptions existed for life and health. Gonzales v. Carhart applied this framework to partial-birth abortion. Whole Woman's Health v. Hellerstedt, decided the year before this opinion, reaffirmed and arguably tightened the undue-burden inquiry by requiring courts to weigh the burdens against the benefits of the regulation.

The heartbeat ban, applied to that framework. Expert testimony in the MKB litigation established detectable heartbeat at roughly six to eight weeks and viability at roughly 24 weeks. A heartbeat ban therefore prohibited abortion in the vast majority of pre-viability pregnancies. The Eighth Circuit in MKB Stenehjem held that this was an undue burden because it imposed a substantial obstacle in the path of women seeking pre-viability abortions. Edwards v. Beck reached the same result on the Arkansas 12-week version.

The AG's reasoning followed the Eighth Circuit straight through. The Tennessee bill's heartbeat ban was indistinguishable in its operative effect, so under the then-controlling federal precedent it was constitutionally suspect.

The ultrasound and informed-consent provisions, by contrast. Tex. Med. Providers Performing Abortion Servs. v. Lakey upheld similar Texas provisions against First Amendment and vagueness challenges. The Fifth Circuit had treated the sonogram requirement as a routine informed-consent measure tied to the Supreme Court's framework in Casey and Gonzales. The AG read the Tennessee bill's parallel ultrasound and information-disclosure provisions as defensible under that approach, while flagging the existence of contrary authority. Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014), had invalidated North Carolina's display-and-describe ultrasound requirement on First Amendment grounds, but the Tennessee bill did not include the mandatory display element that drove the Fourth Circuit's ruling.

The post-viability provisions. Roe v. Wade and Casey both allowed states to restrict or prohibit post-viability abortion if exceptions for life and health were included. The Tennessee bill's post-viability framework allowing abortion only in a medical emergency, performed by a licensed physician, in a licensed hospital, fit comfortably within that body of precedent at the time.

Common questions

Q: What did the bill actually do?
A: It would have required ultrasound testing and disclosure of any detected fetal heartbeat before an abortion, and would have prohibited abortion after the detection of a heartbeat and before viability except in a medical emergency.

Q: Why was the heartbeat ban suspect under the 2017 framework?
A: Under Casey and the Eighth Circuit's decision in MKB Mgmt. Corp. v. Stenehjem, states could not prohibit pre-viability abortion. A detectable heartbeat occurs at roughly six to eight weeks; viability at roughly 24 weeks. The ban therefore prohibited the great majority of pre-viability abortions.

Q: Why were the ultrasound provisions defensible?
A: The Fifth Circuit's Tex. Med. Providers v. Lakey decision had upheld similar Texas provisions as a permissible informed-consent measure under Casey and Gonzales. The AG noted that the Tennessee bill, unlike the North Carolina law struck down in Stuart v. Camnitz, did not require physicians to display and describe the fetal image to a woman who actively averted her eyes.

Q: Did the medical-emergency exception save the heartbeat ban?
A: According to the AG, no. The Eighth Circuit in Edwards v. Beck held that allowing exceptions does not cure a pre-viability ban; the existence of any prohibition on the ultimate decision to terminate before viability was the constitutional problem.

Q: Is this opinion still good law?
A: No. The federal framework on which the opinion rests (Roe and Casey) was overruled in 2022 by Dobbs v. Jackson Women's Health Organization. Tennessee abortion law is governed by a different framework today.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-15-201 (criminal abortion statute)
• Tenn. Code Ann. § 39-15-202(f)(1) (medical emergency definition)

Cases:

• MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015)
• MKB Mgmt. Corp. v. Burdick, 16 F. Supp. 3d 1059 (D.N.D. 2014)
• Gonzales v. Carhart, 550 U.S. 124 (2007)
• Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)
• Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015)
• Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016)
• Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012)
• Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)
• Roe v. Wade, 410 U.S. 113 (1973)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-015.pdf

Original opinion text

March 1, 2017
Opinion No. 17-15
Constitutionality of Senate Bill 244/House Bill 108, 110th Tenn. Gen. Assem. (2017)

Question
Is Senate Bill 244/House Bill 108, 110th Tenn. Gen. Assem. (2017), constitutional?

Opinion
Senate Bill 244/House Bill 108, 110th Tenn. Gen. Assem. (2017), filed in January 2017, would make certain changes to Tennessee's criminal abortion statute. While some of the proposed changes are constitutionally defensible, the proposed prohibition on abortion, absent a medical emergency, after the detection of a fetal heartbeat and before viability of the fetus, is constitutionally suspect.

ANALYSIS

Tennessee currently makes it a crime to perform an abortion or to procure a miscarriage unless the abortion or procurement of a miscarriage is performed under certain specified circumstances. Tenn. Code Ann. § 39-15-201. If enacted into law, Senate Bill 244/House Bill 108, would make two significant changes to Tenn. Code Ann. § 39-15-201.

First, absent a medical emergency as defined in the statute, the person who intends to perform an abortion or procure a miscarriage would be required to determine whether the fetus carried by the pregnant woman has a detectable heartbeat. An ultrasound would have to be performed to determine the presence of a fetal heartbeat, results would have to be recorded in the pregnant woman's medical record, the woman would have to be informed in writing if a heartbeat is detected, and the person who performs the ultrasound would have to give the pregnant woman the option to view or hear the fetal heartbeat. [Footnote 1: The bill would require that the ultrasound testing be consistent with standard medical practice, but states that this does not require a transvaginal ultrasound.]

Second, the proposed legislation would prohibit an abortion after the detection of a fetal heartbeat and before viability of the fetus, unless there is a medical emergency. "Medical emergency" is currently defined as "a condition that, on the basis of the physician's good faith medical judgment, so complicates a medical condition of a pregnant woman as to necessitate an immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function." Tenn. Code Ann. § 39-15-202(f)(1)(2016 Supp.). The proposed legislation would require the physician who performs an abortion under the medical emergency exception to document in writing in the woman's medical record the specific condition that constitutes the medical emergency and that the procedure is asserted to address, and the medical rationale for the conclusion that the procedure is necessary to address the medical emergency. Similar documentation would be required when, due to a medical emergency, an abortion is performed without first determining by ultrasound whether the fetus has a detectable heartbeat.

Recent judicial decisions support the conclusion that the proposed legislative prohibition upon pre-viability abortions after detection of a fetal heartbeat is constitutionally suspect, but that the other proposed changes to Tenn. Code Ann. § 39-15-201 are constitutionally defensible.

A similar 2013 North Dakota law was declared unconstitutional in MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 770 (8th Cir. 2015). The law extended North Dakota's general prohibition on post-viability abortion to the point in pregnancy when the fetus possesses a detectable heartbeat. Like S.B. 244/H.B. 108, the North Dakota law focused upon two new requirements. First, it required a physician performing an abortion, absent a medical emergency, to determine if the fetus has a detectable heartbeat. Second, it prohibited a physician from performing an abortion when a heartbeat has been detected, again absent a medical emergency. Id. There was expert testimony in the case that fetal cardiac activity and/or a heartbeat is detectable by about 6 to 8 weeks and that a fetus is not viable until about 24 weeks. [Footnote 2: While the State of North Dakota submitted an expert declaration asserting that an unborn child is viable from conception because in vitro fertilization ("IVF") "allow[s] an embryonic unborn child to live outside the human uterus (womb) for 2 – 6 days after conception," the reviewing courts rejected this argument because its definition of viability differed from that used by the United States Supreme Court and the medical community generally. Id. at 771, 773.] The District Court permanently enjoined the law because it "clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion." Id. at 771, citing MKB Mgmt. Corp. v. Burdick, 16 F. Supp. 3d 1059, 1074-75 (D.N.D. 2014). The Eighth Circuit Court of Appeals affirmed, stating that it was bound by the United States Supreme Court's precedents as summarized in Gonzales v. Carhart, 550 U.S. 124 (2007) and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992):

Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose."

Id. at 772, citing Gonzales, 550 U.S. at 146 (quoting Casey, 505 U.S. at 879, 878, and 877). [Footnote 3: In Casey, the Supreme Court also "confirm[ed]" the "State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health." Casey, 505 U.S. at 846.]

In an earlier decision, Edwards v. Beck, the Eighth Circuit had reached a similar result, enjoining enforcement of the Arkansas Human Heartbeat Protection Act. 786 F.3d 1113, 1117 (8th Cir. 2015). The law challenged in Edwards required physicians to test for a detectible fetal heartbeat before performing an abortion and prohibited physicians, except in instances such as medical emergencies, from performing an abortion of a fetus whose heartbeat had been detected and was of twelve weeks or greater gestation. Id. at 1115-16. The Court of Appeals was not persuaded by Arkansas' attempt to frame the law as a regulation, not a ban, on pre-viability abortions because abortions were still available under certain circumstances:

Whether or not "exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." [Quoting Casey, 505 U.S. at 879.] By banning abortions after 12 weeks' gestation, the Act prohibits women from making the ultimate decision to terminate a pregnancy at a point before viability.

786 F.3d at 1117.

These decisions reflect currently controlling constitutional principles. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016), which reaffirms Casey's conclusion that provisions of law placing a substantial obstacle in the path of women seeking a pre-viability abortion constitute an undue burden on abortion access in violation of the Federal Constitution. Accordingly, the proposed prohibition on pre-viability abortions after detection of a fetal heartbeat in S.B. 244/H.B. 108 is constitutionally suspect because it is inconsistent with these controlling constitutional principles.

In contrast, the proposed statutory amendments that would require a pregnant woman, before an abortion and absent a medical emergency, to obtain ultrasound testing consistent with standard medical practice and to be given specified written information by her physician, are constitutionally defensible. In Tex. Med. Providers Performing Abortion Servs. v. Lakey, the Fifth Circuit Court of Appeals upheld similar provisions that were challenged as violative of the First Amendment and as unconstitutionally vague. 667 F.3d 570, 584 (5th Cir. 2012). The Fifth Circuit noted that the provision of sonograms and detection of fetal heartbeat are routine measures in pregnancy medicine today and are viewed as "medically necessary" for the mother and fetus, and that the point of informed consent laws is to allow the patient to evaluate her condition and make the best decision under difficult circumstances. Id. at 579. It also focused upon the Supreme Court's decisions in Casey and Gonzales, which "emphasize that the gravity of the decision [whether to abort] may be the subject of informed consent through factual, medical detail, that the condition of the fetus is relevant, and that discouraging abortion is an acceptable effect of mandated disclosures." Id. The comparable provisions of Tennessee's proposed legislation are, similarly, constitutionally defensible, even though the outcome of potential litigation challenging the proposed provisions is far from certain. [Footnote 4: For example, criticizing the Fifth Circuit's decision, the Fourth Circuit found a "Display of Real-Time View Requirement" unconstitutional: "This statutory provision interferes with the physician's right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient's psychological health, interfering with the physician's professional judgment, and compromising the doctor-patient relationship." Stuart v. Camnitz, 774 F.3d 238, 249-50 (4th Cir. 2014). Notably, however, and in contrast to S.B. 244/H.B. 108, the North Dakota statute at issue in the case required the physician to display and describe the fetal image during the ultrasound, even if the woman actively "avert[ed] her eyes" and "refus[ed] to hear." Id. at 242.]

Finally, we note that the proposed legislative regulation of post-viability abortion — i.e., allowing the abortion to be performed if there is a medical emergency, if it is performed by a licensed physician, and if it is performed 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. See Casey, 505 U.S. at 846. As held in Roe v. Wade, "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 410 U.S. 113, 164-65 (1973).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
The Honorable Brian Kelsey
State Senator
7 Legislative Plaza
Nashville, Tennessee 37243