VICTORY: Court Upholds Pro-Life Amendment to Tennessee Constitution

January 11, 2018

by Andrea Moury


An amendment to the Tennessee state constitution that has been stuck in limbo for over three years was finally upheld by an appeals court ruling on Tuesday. Hailed as a victory by pro-lifers, this decision means that the 2014 ballot measure removing the right to abortion from the Tennessee constitution is no longer at risk of being struck down.

Brian Harris, president of Tennessee Right to Life, applauded the court’s decision saying, “Today’s ruling is vindication of the state’s amendment process and victory for the thousands of pro-life Tennesseans who sacrificed to see Amendment 1 passed.

Amendment 1, which passed by 53 percent of the vote back in November 2014, states:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives or state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

The amendment followed the same process that every proposed amendment to the Tennessee constitution does. It began by passing with a majority in both houses. After the next legislative election, it then had to pass with a two-thirds majority. Then, it was approved by the people with a majority of the vote. Consistent with Tennessee’s amendment protocol, that majority was required to amount to a “majority of all the citizens of the state voting for Governor.”

Since its implementation in 1953, this amendment process has been interpreted as meaning that the total “yes” votes are required to exceed half of the total gubernatorial vote. That means that even if a person had not voted in the gubernatorial election, his or her affirmative vote on the amendment could still be counted.

Determined to thwart the pro-life amendment, a group of eight pro-abortion advocates turned their attention to this amendment process as an avenue of attack. Shortly after the contentious wording was approved, they sued the state of Tennessee claiming that its amendment process did not give their voice enough weight. They argued that those who supported the amendment and strategically abstained from voting for governor unfairly diluted the votes of those opposed to the amendment.

In April 2016, they succeeded in getting Judge Kevin Sharp, an Obama-appointed federal judge, to side with them, declaring the method of counting votes unconstitutional and ordering a statewide recount which would only include the votes of those who voted on both the gubernatorial ballot and the amendment proposal. This would mean that the votes of those who voted for the amendment but did not vote for governor would not be given any consideration.

In yesterday’s ruling, the Sixth US Circuit Court of Appeals ruled that Tennessee’s vote counting method is reasonable and consistent with the meaning of the state’s constitution, as interpreted for decades. Therefore, a recount is neither necessary nor justified, and the amendment, which allows for restrictions on abortion, is legitimate.

Judge David McKeague, a member of the three-judge panel, rejected the plaintiffs’ arguments for failing to show how the state had diluted their votes or harmed their constitutional rights of due process and equal protection. “This is not the ‘exceptional case’ that warrants federal intervention in a lawful state election process,” he wrote.

The court’s decision points out that every Tennessee voter was free to “operate within the established framework” to promote his or her viewpoint on both the amendment and the governor, purposefully abstaining from either election as he or she felt would be most beneficial. It states:

Plaintiffs arguments amount to little more than a complaint that the campaigns in support of Amendment 1, operating within the framework established by state law, turned out to be more successful than the campaigns against Amendment 1.

The 27-page opinion concludes, “Although the subject of abortion rights will continue to be controversial in Tennessee and across our nation, it is time for uncertainty surrounding the people’s 2014 approval and ratification of Amendment 1 to be put to rest.”

Tennessee Secretary of State Tre Hargett expressed his approval in a statement: “This opinion confirms what we have known all along… Tennesseans should take pride in knowing their votes are counted in a fair, impartial and trustworthy manner.”

Photo credit: Anna Levinzon via Flickr, CC BY 2.0


Andrea Moury is a regular contributor to TheNationalPulse.com.

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