§ 39-15-214 — Findings - Purpose

(a) Findings. The general assembly finds: (1) As the Supreme Court has stated in Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992), "Abortion is a unique act" and is "fraught with consequences...for the woman who must live with the implications of her decision." As the Supreme Court stated in Gonzales v. Carhart, 550 U.S. 124, 159 (2007) "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." The Supreme Court has acknowledged, in Casey at 882, that the effect of an abortion on the life of the unborn child is "relevant, if not dispositive" information for the patient's decision; (2) Current standards of medical care mandate the performance of an ultrasound prior to the performance of inducing of an abortion. Determining accurate information regarding gestational development is important for purposes of informed consent, as well as making essential preparation for the procedure itself; (3) In this state ultrasounds are regularly provided to women seeking an abortion to determine if they are eligible for a medication abortion, and to review other factors related that cannot be determined prior to an examination of the patient; (4) In the forty-seven (47) years since the United States Supreme Court's ruling in Roe v. Wade, 410 U.S. 113 (1973), there have been substantial advances in scientific methods and medical technology that have significantly expanded knowledge and understanding of prenatal life and development, and the effects of abortion on the physical and psychological health of women; (5) At conception, a new and genetically distinct human being is formed; (6) The state has a legitimate, substantial, and compelling interest in protecting the rights of all human beings, including the fundamental and absolute right of unborn human beings to life, liberty, and all rights protected by the Fourteenth and Ninth Amendments to the United States Constitution; (7) The presence of a fetal heartbeat is medically significant because the heartbeat is a discernible sign of life at every stage of human existence; (8) An unborn child's heart begins to beat at five (5) weeks gestational age, and blood begins to flow during the sixth week; (9) Depending on what type of equipment is utilized, an unborn child's heartbeat can be detected as early as six (6) to eight (8) weeks gestational age; (10) An unborn child's heartbeat can consistently be made audible using a handheld Doppler fetal heart rate device by twelve (12) weeks gestational age; (11) A pregnancy can be confirmed through the detection of the unborn child's heartbeat; (12) By the beginning of the second trimester, physicians view the absence of a fetal heartbeat as an instance of fetal death; (13) It is standard medical practice to monitor an unborn child's heartbeat throughout pregnancy and labor to measure the heart rate and rhythm of the unborn child, which averages between one hundred ten (110) and one hundred sixty (160) beats per minute. This monitoring is used as an indicator of the health of the unborn child; (14) Since the Supreme Court's decision in Roe v. Wade, medical professionals have expanded their understanding of life in utero to include, among other indicia, the presence of a heartbeat, brain development, a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, and the ability to experience pain; (15) The presence of a fetal heartbeat is the best indicator of a viable pregnancy. The detectability of a fetal heartbeat is a strong predictor of survivability to term, especially if the heartbeat is present at eight (8) weeks gestational age or later; (16) When a fetal heartbeat is detected between eight (8) and twelve (12) weeks gestational age, the rate of miscarriage is extremely low, with approximately ninety-eight percent (98%) of naturally conceived pregnancies carrying to term; (17) At eight (8) weeks gestational age, an unborn child begins to show spontaneous movements, and reflexive responses to touch. The majority of an unborn child's body is responsive to touch by fourteen (14) weeks gestational age; (18) Peripheral cutaneous sensory receptors, which are the receptors that feel pain, develop in an unborn child at around seven (7) to eight (8) weeks gestational age. Sensory receptors develop in the palmar regions during the tenth week of gestational age, growing throughout the unborn child's body by sixteen (16) weeks gestational age; (19) An unborn child's nervous system is established by six (6) weeks gestational age. At this stage, the basic pattering of the early nervous system is in place and is the basis for tremendous growth and increased complexity built upon this basic pattern. The earliest neurons of the cortical brain, responsible for thinking, memory, and higher level functions, are established by the fourth week; (20) Synapses are formed in the seventh week, and the neural connections for the most primitive responses to pain are in place by ten (10) weeks gestation; (21) Substance P, a peptide functioning as a neurotransmitter in the transmission of pain, is present in the spinal cord of an unborn child at eight (8) weeks gestational age, while enkephalin peptides, which serve as neurotransmitters in pain modulation, are present at twelve (12) to fourteen (14) weeks gestational age; (22) There is significant evidence, based on peer-reviewed scientific studies, that unborn children are capable of experiencing pain by no later than twenty (20) weeks gestational age. Pain receptor nerves are already present throughout the human body by twenty (20) weeks gestation, and the cortex, which begins development at eight (8) weeks, has a full complement of neurons at twenty (20) weeks; (23) There is evidence that an unborn child is capable of feeling pain as early as twelve (12) to fifteen (15) weeks gestational age. The scientific evidence shows that significant cortical neuronal connections are in place by ten (10) to twelve (12) weeks gestation, and that connections between the spinal court and thalamus are nearly complete by twenty (20) weeks gestation; (24) A growing body of medical evidence and literature supports the conclusion that an unborn child may feel pain from around eleven (11) to twelve (12) weeks gestational age, or even as early as five and a half (51/2) weeks. At only eight (8) weeks gestation, an unborn child exhibits reflexive movement during invasive procedures resulting from spinal reflex neuro pathways, showing that the unborn child reacts to noxious stimuli with avoidance reactions and stress responses. By sixteen (16) weeks gestational age, pain transmission from a peripheral receptor to the cortex is possible. Significant evidence also shows hormonal stress responses by unborn children as early as eighteen (18) weeks; (25) Mothers considering abortion express concern over the medical information on fetal neurological development and an unborn child's ability to feel pain while in utero, and providing this information to mothers who are considering abortion is an important part of empowering mothers to make a fully-informed choice on whether or not to seek an abortion; (26) Medical evidence shows that younger infants are hypersensitive to pain. Neuronal mechanisms that inhibit or moderate pain sensations do not begin to develop until thirty-four (34) to thirty-six (36) weeks gestation and are not complete until a significant time after birth. Newborn and preterm infants are hyperresponsive to pain compared to adults or older infants; (27) The recognition of fetal pain has led to improvements and changes in how physicians approach fetal surgery and fetal anesthesia. The presence of neural connections and the ability to feel pain as early as the fifteenth week now necessitate treating the unborn child as a separate patient from the mother for purposes of utilizing direct analgesia to fetal patients, who clearly elicit stress responses to pain; (28) Fetal surgeons at specialized units in St. Louis, Nashville, Cincinnati, Kansas City, Boston, and elsewhere, in response to their recognition of fetal pain, routinely use anesthesia and analgesia for unborn and premature infants undergoing surgery as young as eighteen (18) weeks gestation; (29) The leading textbook on clinical anesthesia recognizes the significant body of evidence indicating the importance of mitigating fetal stress responses to pain stimuli. It is presumed that an unborn child's ability to fully experience pain occurs between twenty (20) and thirty (30) weeks, and that the fetal experience of pain may be even greater than that of term neonate or young children due to the immaturity of neurodevelopment that helps inhibit pain; (30) Mothers considering abortion express concern over the medical information on fetal neurological development and an unborn child's ability to feel pain while in utero; (31) The infliction of unnecessary pain upon a living being is generally prohibited by state and federal law. The legislature has prohibited the unnecessary infliction of pain on living beings in a variety of circumstances in an effort to protect the innocent from harm; (32) The life of an unborn child is recognized and protected from violence by federal law and by the laws of most states. The killing of an unborn child is considered homicide in thirty-eight (38) states, with at least twenty-eight (28) of those states criminalizing the act from conception. Nearly every state and the District of Columbia have wrongful death statutes that allow for liability and recovery for the death of an unborn child or subsequent death of an infant who is born and later dies because of injuries caused while in utero; (33) The United States Supreme Court created the viability standard for evaluating abortion-related laws and regulations in Roe v. Wade, 410 U.S. 113 (1973), and reaffirmed this approach in Planned Parenthood v. Casey, 505 U.S. 833 (1992); (34) At the time Roe v. Wade was decided, the court recognized that viability was not likely until approximately twenty-eight (28) weeks gestational age; (35) Since the Supreme Court's decisions in Roe v. Wade and Planned Parenthood v. Casey, advances in science, technology, and treatment methods have resulted in children surviving and thriving at younger preterm ages than ever before; (36) In recent years, scientific advances and advances in neonatal care of lowered the gestational limits of survivability well into the second trimester; (37) The age at which a preterm infant can survive has decreased from twenty-eight (28) weeks to less than twenty-two (22) weeks. Survival of preterm infants has increased significantly over time assuming physicians provide active care for the young infants, lowering the age of survival from twenty-eight (28) weeks to twenty-four (24) weeks. Moreover, infants born as early as twenty-two (22) weeks can survive with the provision of care and treatment. The youngest preterm infant to survive was born at only twenty-one (21) weeks and four (4) days; (38) In 1978, the first infants weighing less than seven hundred fifty (750) grams were successfully ventilated; (39) By the 1990s, survival of infants born weighing between five hundred (500) and seven hundred (700) grams, roughly between twenty-four (24) to twenty-six (26) weeks, became possible; (40) Technological developments in the 1980s and 1990s, such as improved tracheal instillation of surfactant for respiratory distress syndrome and antenatal corticosteroids, resulted in survival of infants born between twenty-three (23) to twenty-four (24) weeks; (41) In recent years, resuscitation and survival of infants born weighing less than four hundred (400) grams, or approximately twenty-two (22) to twenty-three (23) weeks gestational age, has further decreased the age of viability; (42) The provision of active prenatal and postnatal care has significantly increased the number of prematurely born children who survive until hospital discharge; (43) Abortions performed at any gestational age pose a risk to the mother. Abortion increases the risks of subsequent preterm birth and placenta previa, life-threatening hemorrhage, postpartum hemorrhage, and cesarean delivery; (44) Abortions performed later in pregnancy pose an even higher medical risk to the health and life of women, with the relative risk increasing exponentially at later gestational ages after eight (8) weeks gestational age; (45) The relative risk of death for pregnant women who had an abortion performed or induced upon her at eleven (11) to twelve (12) weeks gestational age is between three (3) and four (4) times higher than an abortion at eight (8) weeks gestational age or earlier; (46) The relative risk of death for pregnant women who had an abortion performed or induced upon her at thirteen (13) to fifteen (15) weeks gestational age is almost fifteen (15) times higher than an abortion at eight (8) weeks gestational age or earlier; (47) The relative risk of death for pregnant women who had an abortion performed or induced upon her at sixteen (16) to twenty (20) weeks gestational age is almost thirty (30) times higher than an abortion at eight (8) weeks gestational age or earlier; (48) The relative risk of death for pregnant women who had an abortion performed or induced upon her at twenty-one (21) weeks gestational age or later is more than seventy-five (75) times higher than an abortion at eight (8) weeks gestational age or earlier; (49) Women who have an abortion suffer from post-traumatic stress disorder at a rate slightly higher than veterans of the Vietnam war. Women who have an abortion have an eighty one percent (81%) increased risk of mental trauma after an abortion. Abortion has been shown to correlate with many other mental health disorders as well; (50) The United States is one of only seven (7) countries in the world that permits elective abortion past twenty (20) weeks; (51) Only seventeen (17) countries permit abortion without any restriction beyond week twelve (12) weeks gestational age; (52) The United States is an outlier within the international community related to the regulation of abortion. Of the countries that permit elective abortion, nine (9) limit elective abortion before the twelfth week of gestation, thirty-six (36) limit elective abortion at twelve (12) weeks gestation, six (6) limit elective abortion between twelve (12) and twenty (20) weeks gestation, and only seven (7) permit elective abortion past twenty (20) weeks or have no gestational limit; (53) The historical development of abortion is undeniably tied to bias and discrimination by some organizations, leaders, and policies towards impoverished and minority communities, including the imposition of forced sterilization of the intellectually disabled, poor, minority, and immigrant women. These historic policies should be rejected and left on the ash heap of history; (54) As Justice Clarence Thomas wrote in his opinion concurring in the denial of certiorari in Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780, 1783 (2019), "the use of abortion to achieve eugenic goals is not merely hypothetical." This historical practice of abortion was rooted not in equality but in discrimination based on age, sex, and disability; (55) In the early twentieth century, the eugenics movement had grown popular across elite institutions in the United States, with many distinguishing between so-called fit and unfit individuals along racial lines and expressing concern over the increased birth-rate among non-white populations. Such abhorrent distinctions were also made between able-bodied persons and persons eugenicists referred to as "feeble-minded," "deformed," "diseased," blind, deaf, or "dependent," a term used to included orphans and the poor. Laws were adopted prohibiting marriages between the disabled and other "unfit" individuals and requiring their sterilization. More than sixty thousand (60,000) people were involuntarily sterilized between 1907 and 1983; (56) Planned Parenthood founder Margaret Sanger argued in the early twentieth century that birth control would open the way to the eugenicist. Sanger argued that birth control could be used to reduce the "ever increasing, unceasingly spawning class of human beings who never should have been born at all; (57) This argument was later adopted by abortion advocates, such as Planned Parenthood President Alan Guttmacher, who endorsed abortion for eugenic purposes. Guttmacher argued in the 1950's that abortion should be used to prevent the birth of disabled children. Legal scholar Glanville Williams, whose book was cited in the majority opinion in Roe v. Wade, argued in a book published in the 1950's that a "eugenic killing by a mother ...cannot confidently be pronounced immoral; (58) Some continue to support the goal of reducing undesirable populations through selective reproduction; (59) Today, the individualized nature of abortion creates a significant risk that prenatal screening tests and new technologies will be used to eliminate children with unwanted characteristics; (60) There is substantial evidence from across the globe and in the United States that the elimination of children with unwanted characteristics is already occurring. The abortion rate for children diagnosed with Down syndrome in utero approaches one hundred percent (100%) in Iceland, ninety-eight percent (98%) in Denmark, ninety percent (90%) in the United Kingdom, and seventy-seven percent (77%) in France. Even in the United States, the abortion rate for children with Down Syndrome is sixty-seven percent (67%). Widespread sex-selective abortions in Asia have led to as many as one hundred sixty (160) million "missing" women. In India, as a result of the abortion of 300,000-700,000 female unborn children each year over several decades, there are currently about fifty (50) million more men than women in the country. Recent evidence also suggests that sex-selective abortions of girls are common among certain populations in the United States; (61) Sex-selective abortion results in an unnatural sex ratio imbalance that can impede members of the numerically predominant sex from finding partners, encourage the commoditization of humans in the form of human trafficking, and create other societal harms. Sex-selective abortion also reinforces discriminatory and sexist stereotypes toward women by devaluing and dehumanizing females; (62) In this state, from 2008 through 2017, the rate of abortion per one thousand (1,000) women was nearly four (4) times higher for nonwhite women than white women, with a rate of 7.6 on average for all women, 4.6 for white women, and 16.0 for nonwhite women. The ratio of abortions to one thousand (1,000) live births in this state from 2008-2017 was nearly three (3) times higher for nonwhite women than white women, with an average of 138.2 for all women, 85.1 for white women, and 294.4 for nonwhite women; (63) The use of abortion as a means to prefer one (1) sex over another or to discriminate based on disability or race is antithetical to the core values equality, freedom, and human dignity enshrined in both the United States and Tennessee Constitutions. The elimination of bias and discrimination against pregnant women, their partners, and their family members, including unborn children, is a fundamental obligation of government in order to guarantee those who are, according to the Declaration of Independence, "endowed by their Creator with certain unalienable Rights" can enjoy "Life, Liberty, and the pursuit of Happiness"; (64) This state has historically protected its interest in preserving the integrity of the medical profession by enacting a comprehensive statutory framework for ensuring the integrity of the medical profession in title 63; (65) The general assembly first adopted an act creating the Board of Medical Examiners in 1901, with the mission to protect the health, safety, and welfare of the people of this state and to ensure the highest degree of professional conduct; (66) As the Supreme Court of the United States acknowledged in Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (citing Washington v. Glucksberg, 521 U.S. 702, 731 (1997)), "the government has an interest in protecting the integrity and ethics of the medical profession." Under U.S. Supreme Court precedents, it is clear the State has a significant role to play in regulating the medical profession; (67) Physician involvement in medical practices that cause fetal pain has been rejected by the international community; (68) Physician involvement in medical practices that facilitate discrimination is antithetical to the United States and Tennessee constitutions' affirmation of equal protection under the law; (69) The integrity and public respect of the medical profession are significantly harmed by physician involvement in practices that have been rejected by the international community, facilitate discrimination, or otherwise create a disdain for life; (70) This state has a legitimate, substantial, and compelling interest in valuing and protecting unborn children; (71) This state has a legitimate, substantial, and compelling interest in protecting the physical and mental health of the mother; (72) This state has a legitimate, substantial, and compelling interest in promoting human dignity; (73) This state has a legitimate, substantial, and compelling interest in encouraging childbirth over abortion; (74) This state has a legitimate, substantial, and compelling interest in safeguarding an unborn child from the serious harm of pain by an abortion method that would cause the unborn child to experience pain; (75) This state has a legitimate, substantial, and compelling interest in resolving untenable inconsistencies and incongruities in state law which permits some unborn children to be killed by abortion, while requiring that unborn children be protected and valued in non-abortion circumstances including, but not limited to, criminal provisions related to the infliction of harms against persons, state programs intended to aid prenatal healthcare, and state sponsored healthcare for unborn children; (76) This state has a legitimate, substantial, and compelling interest in protecting the integrity and ethics of the medical profession, including by prohibiting medical practices that might cause the medical profession to become insensitive, even disdainful, to life, including the life of the unborn child; and (77) This state has a legitimate, substantial, and compelling interest in preventing discrimination. (b) Purpose. (1) The purpose of this section is to provide legislative intent and reasoning underlying the enactment of laws to protect maternal health, and to preserve, promote, and protect life and potential life throughout pregnancy, including, but not limited to, §§ 39-15-215 - 39-15-217. (2) The unique nature of abortion and its potential physical and mental health risks, as well as the ultimate result of the death of an unborn child, necessitates that this state ensure every woman considering an abortion is provided with adequate comprehensive information before deciding to obtain an abortion. The mandatory provision of an ultrasound prior to the abortion substantially furthers this compelling state interest. (3) The presence of a fetal heartbeat is a medically significant indicator of life and the potential successful development of an unborn child. This state's legitimate, substantial, and compelling interest in protecting unborn children warrants the restriction of abortion in cases where the heartbeat is detectable. (4) The unnecessary infliction of pain upon the life of an unborn child is inconsistent with Tennessee law that would otherwise protect the life and health of an unborn child, undermines the integrity of and public trust in the medical profession, and conflicts with the this state's legitimate, substantial, and compelling interest in protecting the life of an unborn child, protecting the integrity of the medical profession, resolving the conflict in state laws intended to protect the health of the unborn child, and protecting the life, physical health, and mental health of women. Therefore, it is necessary to enact protections against the infliction of pain, and death, upon an unborn child who is capable of experiencing pain. (5) Advances in science and medical practice have decreased the gestational age of an unborn child's viability to survive. This state's legitimate, substantial, and compelling interest in protecting the life of an unborn child, protecting the integrity of the medical profession, resolving the conflict in state laws intended to protect the health of the unborn child, and protecting the life, physical health, and mental health of women require the enactment of a series of gestational age restrictions on the provision of an abortion. (6) The historical use of abortion as a means to discriminatory ends is fundamentally objectionable and conflicts with this state's legitimate, substantial, and compelling interest in preventing discrimination and discriminatory practices. Therefore, it is necessary for this state to enact protections that prevent sex, racial, and disability discrimination against unborn children. (7) Life begins at conception, and nothing in chapter 764 of the Public Acts of 2020 shall be interpreted or construed to suggest that it is the intent or purpose of the legislature to condone abortion of an unborn child at any time after conception. The legislature specifically acknowledges the provisions of § 39-15-213 that will prohibit all abortion effective on the thirtieth day after issuance of a judgment overruling, in whole or in part, Roe v. Wade, as modified by Planned Parenthood v. Casey, or adoption of an amendment to the Constitution, restoring state authority to prohibit abortion.

Legislative History

Added by 2020 Tenn. Acts, ch. 764, s 2, eff. 7/13/2020.