NASHVILLE, Tenn. — The future of abortion access in Tennessee hinges on a quirky court case that’s about vote counting, not women’s reproductive health rights.
A 6th U.S. Circuit Court of Appeals hearing Wednesday in Cincinnati will mark the first major action in more than a year in the case of Amendment 1, an anti-abortion measure passed by voters in 2014. The amendment says that nothing in the state constitution “secures or protects a right to abortion or requires the funding of an abortion” and empowers state lawmakers to “enact, amend, or repeal statutes regarding abortion.”
The court is deciding whether Tennessee incorrectly and unconstitutionally counted votes for the amendment.
In Tennessee, a constitutional amendment must get votes from “a majority of all the citizens of the state voting for governor” in order to pass.
State elections officials say they first check to see if there’s a majority vote for the amendment. Then, they verify that the “yes” votes amount to more than half of the total votes in the governor’s race. The officials say that’s the way they’ve done it since 1953, when the comparison point was changed from total votes for representatives to votes for governor.
In 2014, the state found such a majority for Amendment 1.
But also that year, more people voted on the amendment question than voted for governor. Anti-abortion activists ran a campaign saying voters could “Double Your Vote on Amendment 1” by leaving the governor’s race blank.
In April 2016, U.S. District Judge Kevin Sharp ruled that Tennessee’s method of applying its vote-counting system on Amendment 1 was unconstitutional and fundamentally unfair, and he ordered a recount.
Sharp said the state violated due process and equal protection rights because people who voted for the amendment and didn’t vote for governor effectively lowered the bar for the amendment’s passage. In the court-ordered recount, officials would only tally amendment votes from people who also voted for governor, which is the correct, plain language of the law, Sharp wrote.
The legal proceedings have hovered over anti-abortion advocates for years. They worry a decision could invalidate the 2014 vote, strip their hard-fought amendment and negate recent abortion limits.
“The lives of countless unborn children could be lost if Amendment 1 is struck down and state laws protecting women, girls and unborn children are nullified,” Tennessee Right to Life said in a statement.
A ruling against the state could force changes in the longstanding vote-counting practice.
“The practical consequences are pretty significant,” said Edmund Sauer, an attorney with Bradley Arant Boult Cummings LLP who is not involved in the case. “And although the amendment here is about abortion, and that’s what gets a lot of people motivated, for legal geeks like me, it could be an amendment about anything.”
Vanderbilt law professor Tracey George, one of eight abortion rights advocates who filed the lawsuit, has said there’s a good chance the amendment would fail in the recount that Sharp ordered.
Anti-abortion lawmakers, meanwhile, haven’t waited for courts to sort out the legal mess.
They passed a 2015 restriction that made abortion clinics meet hospital-level surgical standards, only to see that law permanently halted this spring in a federal lawsuit. In the same lawsuit, the state is still defending a 2015 restriction that requires counseling and a 48-hour waiting period for women seeking abortions.
And this spring, Gov. Bill Haslam signed a law that bans abortions after 20 weeks on fetuses determined to be viable.
Abortion rights supporters say the new laws have created a substantial burden on women. They hope things can go back to how they were before Amendment 1.
“It would make it easier for women to access safe, legal abortion,” said Jeff Teague, outgoing president of Planned Parenthood of Middle and East Tennessee.
The 2014 election marked the first time more votes were cast for a constitutional amendment than for governor since the 1953 change, the state said in court filings. There’s no evidence the state intended to discriminate in the election, the state added.
Additionally, a Tennessee court has ruled in favor of the state’s vote-counting interpretation, and state officials say that’s the proper court system to decipher the state constitution.