Planned Parenthood Association of Tennessee v. Don Sundquist, Governor of the State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

PLANNED PARENTHOOD OF )

MIDD LE TE NNE SSEE , et al. )

)

Plaintiffs/Appellants, )

) Davidso n Circuit

VS. ) No. 92C-1672

)

DON SUNDQUIST, GOVERNOR )

OF THE STATE OF TENNESSEE, ) Appeal No.

et al., ) 01A01-9601-CV-00052

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON GAYDEN, JUDGE

For Plaintiffs/A ppellants : For Defendants/Appellees:

Barry Friedman John Knox Walkup

Vande rbilt Univers ity Attorney General and Reporter

Nashville, Tennessee

Andy D . Bennett

Irwin Venick Associate Chief D eputy

Dobbins & Venick

Nashville, Tennessee Michael W. Catalano

Associate Solicitor General

Elizabeth B. Thompson

Howrey & Simon

Washington, DC For Dr. Anthony Trabue and

Dr. Betty Neff:

Barbara E. Otten

Dara Klassel J. Russell Heldman

Roger K. Evans Franklin, Tennessee

Planned Parenthood Federation of America, Inc.

New York, NY

Louise Melling

Catherine Weiss

American Civil Liberties Foundation

New York, NY

For Am erican Co llege of Ob stetricians and Gynec ologists:

Ann E. Allen

Americ an Colleg e of Obste tricians and G ynecolog ists

Washington, DC

Abby R . Rubenfe ld

Rubenfeld & Associates

Nashville, Tennessee

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal presents a multifaceted challenge to the constitutionality of

Tennessee’s abortion statutes. After a physician and a clinic in Knoxville were

charged with violating these statutes, two other clinics in Memphis and Nashville,

joined by three physicians, filed suit in the Circuit Court for Davidson County

seeking declaratory and injunctive relief under the Constitution of Tennessee. The

trial court struck down the residency requirement, the waiting period, and the

requirement that physicians inform their patients that an abortion is a major surgical

procedure. After making its own substantive revisions in the statutory text, the trial

court upheld the mandatory hospitalization requirement, the remaining informed

consent requirements, and the newly enacted parental consent requirement. We have

determined that the trial court erred by revising the text of several provisions. We

have also determined that the emergency medical exception enacted by the General

Assembly is unconstitutionally narrow, that the combined effect of the waiting period

and the physician-only counseling requirement places an undue burden on women’s

procreational choice, and that the remaining challenged provisions as construed

herein pass constitutional muster.

I.

Tennessee’s statutes regulating abortions have not developed in a vacuum

during the past twenty-five years. They have been inextricably caught up in the

continuing national debate over the scope of a woman’s freedom to make profoundly

personal decisions concerning whether or not to terminate her pregnancy free from

unwarranted governmental intrusion. The United States Supreme Court’s abortion

jurisprudence has influenced the direction of this debate, and thus, Tennessee’s

abortion statutes must be considered against a national backdrop that takes into

account the federal constitutional principles formulated and applied by the United

States Supreme Court.

In 1973, the United States Supreme Court held that women possess a

fundamental right to decide whether to terminate a pregnancy. This right springs

from their constitutionally protected right of privacy and their liberty interests arising

under the Due Process Clause of the Fourteenth Amendment. See Roe v. Wade, 410

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U.S. 113, 152-55, 93 S. Ct. 705, 726-728 (1973). But as fundamental as these rights

are, the Court also held that they are not absolute or unqualified and that they must

be measured against the State’s important interests in safeguarding health, in

maintaining medical standards, and in protecting potential life. See Roe v. Wade, 410

U.S. at 154, 93 S. Ct. at 727.

The Court reconciled women’s procreational rights with the State’s interests

in two ways. First, the Court announced that statutes affecting a woman’s right to

decide whether to terminate a pregnancy must be subjected to heightened scrutiny

and should be upheld only when they are narrowly drawn to further a compelling

state interest. See Roe v. Wade, 410 U.S. at 155-156, 93 S. Ct. at 728. Second, the

Court established the trimester framework to govern abortion regulations. During the

first trimester, almost no interference with a woman’s right to decide whether to

terminate a pregnancy was permitted. During the second trimester, the framework

allowed regulations to protect the woman’s health but not to further the State’s

interest in protecting potential life. During the third trimester, when the fetus was

viable, the framework permitted the states to prohibit abortions unless the life or

health of the mother was at stake. See Roe v. Wade, 410 U.S. at 163-66, 93 S. Ct. at

731-33.

Rather than ending the abortion controversy, the Roe v. Wade decision caused

abortion to become one of the most divisive domestic legal issues of our time. See

Planned Parenthood v. Casey, 505 U.S. 833, 995, 112 S. Ct. 2791, 2882 (1992)

(Scalia, J., concurring in the judgment in part and dissenting in part); Webster v.

Reproductive Health Servs., 492 U.S. 490, 559, 109 S. Ct. 3040, 3079 (1989)

(Blackmun, J., concurring in part and dissenting in part); Earl M. Maltz, Abortion,

Precedent, and the Constitution: A Comment on Planned Parenthood of Southeast

Pennsylvania v. Casey, 68 Notre Dame L. Rev. 11, 27 (1992). State legislatures

began to test the limits of the Roe v. Wade decision by enacting various restrictions

on a woman’s right to decide whether to terminate her pregnancy. For its part, the

Court used Roe v. Wade’s strict scrutiny test to strike down a number of these

restrictions.1 But even while it was invalidating state statutes restricting a woman’s

1

See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.

747, 764, 106 S. Ct. 2169, 2180 (1986) (invalidating a requirement of mandatory pre-abortion

counseling by a physician using state-prescribed materials discouraging abortion); City of Akron v.

(continued...)

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right to terminate her pregnancy, the Court also held repeatedly that the states could

favor childbirth over abortion by declining to use public funds or facilities to perform

abortions.2

Tennessee was not unaffected by the Roe v. Wade decision. It too had a statute

on the books, like the Texas statute struck down in Roe v. Wade, that criminalized

abortions except to preserve the life of the mother.3 Realizing that the statute could

not pass constitutional muster, the General Assembly enacted a new statute intended

to comply with Roe v. Wade’s trimester framework.4 However, the General

Assembly limited the right to obtain an abortion under the new statute to women who

could demonstrate that they were bona fide residents of Tennessee.5

During the next five years, the General Assembly increased the punishment for

performing criminal abortions6 and provided for the medical care and custody of

infants born live during an abortion procedure.7 It also established an informed

1

(...continued)

Akron Ctr. for Reproductive Health, 462 U.S. 416, 437-39, 449-51, 103 S. Ct. 2481, 2496-97, 2502-

03 (1983) (invalidating 24-hour waiting periods and requirements that abortions be performed in

hospitals after the first trimester); Planned Parenthood v. Danforth, 428 U.S. 52, 69-71, 74-75, 96

S. Ct. 2831, 2841-42, 2843-44 (1976) (invalidating spousal consent requirements and parental

vetoes).

2

See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 507-11, 109 S. Ct. 3040,

3050-53 (1989); Poelker v. Doe, 432 U.S. 519, 521, 97 S. Ct. 2391, 2392 (1977); Maher v. Roe, 432

U.S. 464, 474, 97 S. Ct. 2376, 2382-83 (1977).

3

See Act of Mar. 23, 1883, ch. 140, 1883 Tenn. Pub. Acts 188 (codified at Tenn. Code Ann.

§ 39-301 (amended 1973)).

4

See Act of May 14, 1973, ch. 235, 1973 Tenn. Pub. Acts 901 (codified at Tenn. Code Ann.

§ 39-301 (Supp. 1973)). This statute permitted abortions performed during the first three months

of pregnancy with the woman’s consent and pursuant to the medical judgment of her attending

physician. See Tenn. Code Ann. § 39-301(e)(1). It also permitted abortions after three months but

before viability if they were performed in a hospital with the woman’s consent and pursuant to the

medical judgment of the woman’s physician. See Tenn. Code Ann. § 39-301(e)(2). Finally, the

statute permitted abortion during viability if the requirements of Tenn. Code Ann. § 39-301(e)(2)

were met and if the woman’s physician certified in writing to the hospital and the district attorney

general that the abortion was necessary to preserve the life or health of the mother. See Tenn. Code

Ann. § 39-301(e)(3).

5

See Tenn. Code Ann. § 39-301(f).

6

See Act of Mar. 1, 1974, ch. 471, 1974 Tenn. Pub. Acts 156 (codified at Tenn. Code Ann.

§ 39-301(c) (Supp. 1974)).

7

See Act of Mar. 20, 1978, ch. 811, 1978 Tenn. Pub. Acts 925 (codified at Tenn. Code Ann.

§§ 39-306, -307 (Supp. 1978)).

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consent procedure and imposed a waiting period before abortions could be

performed.8

The first judicial challenge to Tennessee’s abortion statutes was filed in the

United States District Court for the Western District of Tennessee when Planned

Parenthood of Memphis attacked the residency requirement enacted in 1973 and the

informed consent and waiting period requirements enacted in 1978. The United

States District Court permanently enjoined the enforcement of the residency

requirement and continued the temporary injunction against enforcing the waiting

period. See Planned Parenthood of Memphis v. Blanton, No. 78-2310 (W.D. Tenn.

July 14, 1978). In 1979, the General Assembly enacted new informed consent and

waiting period requirements designed to respond to the constitutional challenges

involved in the pending federal litigation.9 It also established a parental notification

procedure for minors seeking an abortion10 and placed restrictions on research and

experimentation on aborted fetuses.11

Within months after the enactment of the 1979 amendments to the abortion

statutes, the Chancery Court for Davidson County temporarily enjoined the

enforcement of the informed consent and waiting period requirements. After the

Attorney General declined to defend the parental notification procedure, the chancery

court also found that it was unconstitutional. See Planned Parenthood of Nashville,

Inc. v. Alexander, No. 79-843-II (Davidson Chan. Oct. 19 & 24, 1979) (no appeal

filed). Approximately one and one-half years later, the federal district court in

Memphis permanently enjoined the enforcement of the 1978 waiting period statute.

See Planned Parenthood of Memphis v. Alexander, No. 78-2310 (W.D. Tenn. Mar.

23, 1981).

8

See Act of Mar. 23, 1978, ch. 847, 1978 Tenn. Pub. Acts 1078 (codified at Tenn. Code Ann.

§ 39-302(d) (Supp. 1978)).

9

See Act of Apr. 30, 1979, ch. 287, 1979 Tenn. Pub. Acts 590 (codified at Tenn. Code Ann.

§ 39-302 (Supp. 1979)).

10

See Act of May 10, 1979, ch. 334, 1979 Tenn. Pub. Acts 762 (codified at Tenn. Code Ann.

§ 39-302(f) (Supp. 1979)).

11

See Act of Apr. 19, 1979, ch. 183, 1979 Tenn. Pub. Acts 317, (codified at Tenn. Code Ann.

§ 39-308 (Supp. 1979)).

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In 1982 the General Assembly recodified the abortion statutes without

substantive change. See Tenn. Code Ann. §§ 39-4-201, -208 (1982). Six years later,

it established a new parental consent procedure.12 In 1989, the General Assembly

provided for expedited appellate review of judicial decisions to forego parental

consent.13 During the same session, the General Assembly again recodified the

abortion statutes but this time made substantive changes in the law. It replaced the

1988 parental consent procedures with the parental notification procedures originally

enacted in 1979 that had been invalidated by the Davidson County Chancery Court

ten years earlier.14 The Tennessee Supreme Court later determined that the General

Assembly’s recodification of the 1979 parental notification procedures repealed the

1988 parental consent procedures by implication. See Planned Parenthood Ass’n of

Nashville, Inc. v. McWherter, 817 S.W.2d 13, 16 (Tenn. 1991).

The United States Supreme Court’s adherence to the trimester framework in

Roe v. Wade began to waver as the years passed. In 1989, three justices concluded

that it was unsound in principle and unworkable in practice, see Webster v.

Reproductive Health Servs., 492 U.S. 490, 518, 109 S. Ct. 3040, 3056 (1989); one

justice advocated overruling Roe v. Wade outright, see Webster v. Reproductive

Health Servs., 492 U.S. at 532, 109 S. Ct. at 3064 (Scalia, J., concurring in part and

concurring in the judgment); while another justice implied that Roe v. Wade should

be reexamined at a proper time. See Webster v. Reproductive Health Servs., 492 U.S.

at 525-26, 109 S. Ct. at 3060-61 (O’Connor, J., concurring in part and concurring in

the judgment). This movement away from the trimester framework prompted the

author of the majority opinion in Roe v. Wade to declare that a woman’s right to

terminate a pregnancy was not “secure.” See Webster v. Reproductive Health Servs.,

12

See Act of Apr. 28, 1988, ch. 929, 1988 Tenn. Pub. Acts. 868 (codified at Tenn. Code Ann.

§§ 37-10-301, -307 (Supp. 1988)). The United States District Court for the Middle District of

Tennessee held that this statute was unconstitutional. See Planned Parenthood Ass’n of Nashville,

Inc. v. McWherter, 716 F. Supp. 1064 (M.D. Tenn. 1989). However, the United States Court of

Appeals for the Sixth Circuit later vacated this decision after the Tennessee Supreme Court held that

the 1988 parental notification statutes had been repealed by implication. See Planned Parenthood

Ass’n of Nashville, Inc. v. McWherter, 945 F.2d 405, 1991 WL 193471 (6th Cir. 1991) (Sept. 30,

1991) (unpublished table decision).

13

See Act of May 24, 1989, ch. 412, 1989 Tenn. Pub. Acts 697 (codified at Tenn. Code Ann.

§ 37-10-304(g) (Supp. 1989)); Tenn. S. Ct. R. 24.

14

See Act of May 24, 1989, ch. 591, 1989 Tenn. Pub. Acts 1169 (codified at Tenn. Code Ann.

§§ 39-15-201, -208 (Supp. 1989)). Compare Tenn. Code Ann. § 39-15-202(f) (Supp. 1989) with

Tenn. Code Ann. § 39-4-202(f) (1982).

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492 U.S. at 537, 109 S. Ct. at 3067 (Blackmun, J., concurring in part and dissenting

in part).

The occasion for re-examining Roe v. Wade arrived in 1992 in a case

challenging the Pennsylvania Abortion Control Act. In a splintered decision in which

the justices issued five separate opinions, seven members of the court chose to

abandon Roe v. Wade’s trimester framework and strict scrutiny standard. The same

four justices who had earlier signaled their dissatisfaction with the Roe v. Wade

decision concluded that a woman’s decision to terminate her pregnancy was not “a

‘fundamental right’ that could be abridged only in a manner which withstood ‘strict

scrutiny’.” Planned Parenthood v. Casey, 505 U.S. 833, 953, 112 S. Ct. 2791, 2860

(1992) (Rehnquist, C.J., concurring in the judgment and dissenting in part). Three

other justices rendered a rare joint opinion in which they reaffirmed the “essential

holding” of Roe v. Wade, see Planned Parenthood v. Casey, 505 U.S. at 846, 112 S.

Ct. at 2804 (O’Connor, Kennedy, & Souter, JJ.), but also replaced the trimester

framework with an undue burden standard in which the viability of the unborn child

plays a prominent role. See Planned Parenthood v. Casey, 505 U.S. at 876-77, 112

S. Ct. at 2820-21 (O’Connor, Kennedy, & Souter, JJ.).

Based on the facts before it, the Court unanimously upheld the Pennsylvania

statute’s definition of “medical emergency.” However, retreating from its earlier

decisions in Thornburgh v. American College of Obstetricians and Gynecologists,

476 U.S. 747, 106 S. Ct. 2169 (1986) and City of Akron v. Akron Ctr. for

Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481 (1983), the Court upheld (1) an

informed consent procedure that required giving women truthful, nonmisleading

information about the nature of the procedure, the attendant health risks as well as

those of childbirth, and the gestational age of the fetus, (2) a requirement that

physicians provide pre-abortion counseling, and (3) a requirement of a 24-hour

waiting period before an abortion could be performed. The Court also upheld a one-

parent consent requirement for minors that included an adequate judicial bypass

procedure. The only provision that the Court struck down, by a narrow majority of

a single vote, was Pennsylvania’s spousal notification requirement.

In the meantime, the controversy over Tennessee’s abortion statutes began to

take concrete form in 1992. After a grand jury in Knoxville indicted a clinic and a

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physician for performing an abortion on a minor who was more than three months

pregnant, the statutes’ opponents filed suit in the Chancery Court for Knox County

challenging the statutes’ constitutionality.15 Less than three weeks after the Planned

Parenthood v. Casey decision, Planned Parenthood Association of Nashville, Inc. and

Memphis Planned Parenthood, Inc. filed suit in the Circuit Court for Davidson

County seeking a declaration that six provisions of the abortion laws were

unconstitutional and requesting an injunction against their enforcement.16 Later, they

filed an amended complaint adding three physicians as plaintiffs who were seeking

to represent themselves and their patients.

The trial court conducted a five-day bench trial in October and November

1992. During the course of the next sixteen months, the trial court issued three

opinions containing its findings with regard to the constitutionality of the challenged

statutes. Specifically, the trial court found that the following four provisions were

unconstitutional: the residency requirement in Tenn. Code Ann. § 39-15-201(d), the

waiting period in Tenn. Code Ann. § 39-15-202(d), the waiting period for minors in

Tenn. Code Ann. § 39-15-202(f), and the requirement in Tenn. Code Ann. § 36-15-

202(b)(4) that women be informed that an abortion is a “major surgical procedure.”

The trial court also determined that Tenn. Code Ann. § 39-15-201(a) and Tenn. Code

Ann. § 39-15-201(b)(2) were not unconstitutionally vague. Finally the trial court

upheld the remaining challenged provisions after “broadly construing” or “salvaging”

them by importing terms into the statutory text that had not been included by the

General Assembly.

In November 1994, this court dismissed the first appeal in this case for lack of

a final order and remanded the case for further proceedings. While the case was

pending in the trial court, the General Assembly revived the parental consent

requirement originally enacted in 1988 and codified at Tenn. Code Ann. §§ 37-10-

15

This suit was later transferred to the Chancery Court for Davidson County where it was

stayed and held in abeyance pending the outcome of this litigation. See Emancipation v. McWherter,

No. 92-2221-II (Davidson Chan. Order filed April 21, 1993).

16

Specifically, the plaintiffs challenged the requirement in Tenn. Code Ann. § 39-15-

201(c)(2) that abortions “after three (3) months, but before viability of the fetus” be performed in

“a hospital as defined in § 68-11-201”; the prohibition against attempting to procure a miscarriage

in Tenn. Code Ann. § 39-15-201(b)(2); the residency requirement in Tenn. Code Ann. § 39-15-

201(d); the requirement in Tenn. Code Ann. § 39-15-202(b), (c) that a physician provide state-

mandated pre-abortion information; the waiting period required by Tenn. Code Ann. § 39-15-202(d);

and the parental notification procedure in Tenn. Code Ann. § 39-15-202(f) (Supp. 1989).

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301, -307 and repealed the parental notification requirement in Tenn. Code Ann. §

39-15-202(f).17 Upon being notified of this legislative development, the trial court

initially observed that the revival of the parental consent statutes might render moot

its decision concerning the constitutionality of the parental notification procedure in

Tenn. Code Ann. § 39-15-202(f). Even though the plaintiffs specifically declined to

amend their complaint to challenge the parental consent statutes and requested a

ruling on the constitutionality of Tenn. Code Ann. § 39-15-202(f), the trial court

entered another order in July 1995 upholding the constitutionality of the new parental

consent procedure in Tenn. Code Ann. §§ 37-10-301, -307. The trial court entered

an amended final order and judgment in August 1995.

II.

We will first address a threshold matter concerning the plaintiffs’ standing to

challenge the requirement in Tenn. Code Ann. § 39-15-201(c)(2) that abortions

performed after the first three months of pregnancy must be performed in a hospital.

The State asserts that the plaintiffs do not have standing because neither Planned

Parenthood clinic currently offers second trimester abortions. The plaintiffs respond

in two ways. First, they assert that the plaintiff physicians have standing to challenge

the hospitalization requirement on behalf of themselves and their patients. Second,

they point out that the Nashville Planned Parenthood clinic has been considering

offering second trimester abortions because of “the paucity of those services available

in Middle Tennessee.”

Standing is a judge-made doctrine used to determine whether a party is entitled

to judicial relief. See Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976);

Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d

611, 615 (Tenn. Ct. App. 1992). It requires the court to determine whether the party

seeking relief has a sufficiently personal stake in the outcome to warrant the exercise

of the court’s power. See Browning-Ferris Indus., Inc. v. City of Oak Ridge, 644

S.W.2d 400, 402 (Tenn. Ct. App. 1982). The primary focus of a standing inquiry is

17

See Act of May 26, 1995, ch. 458, 1995 Tenn. Pub. Acts 799 (codified at Tenn. Code Ann.

§§ 37-10-301, -307 (1996 & Supp. 1997)).

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on the party, see Valley Forge Christian College v. Americans United for Separation

of Church and State, 454 U.S. 464, 484, 102 S. Ct. 752, 765 (1982), not the

likelihood of success of the party’s claim. See Warth v. Seldin, 422 U.S. 490, 500,

95 S. Ct. 2197, 2206 (1975); Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952

(1968).

As a general rule, parties must assert their own rights and interests and not the

rights and interests of third parties in order to have standing. See Warth v. Seldin,

422 U.S. at 499, 95 S. Ct. at 2205. Thus, litigants ordinarily establish their standing

by demonstrating that they have sustained some actual or threatened injury, that the

injury was caused by the challenged conduct, and that the injury is one for which a

judicial remedy is available. See In re Petition of Youngblood, 895 S.W.2d 322, 326

(Tenn. 1995); Tennessee Envtl. Council v. Solid Waste Disposal Control Bd., 852

S.W.2d 893, 896 (Tenn. Ct. App. 1992); Metropolitan Air Research Testing Auth.,

Inc. v. Metropolitan Gov’t, 842 S.W.2d at 615. However, the courts may also grant

a litigant standing to assert the rights of third parties (jus tertii) when the litigant has

suffered its own direct injury-in-fact and when the concomitant rights of third parties

would be diluted or adversely affected by the proceeding. See Craig v. Boren, 429

U.S. 190, 195, 97 S. Ct. 451, 455-56 (1976).

The United States Supreme Court has specifically accorded physicians standing

to challenge the constitutionality of abortion statutes on behalf of their patients.

Recognizing the closeness of the physician-patient relationship, the fact that a woman

cannot safely procure an abortion except from a physician, and the difficulties facing

women who wish to assert their own claims, the Court concluded that a “physician

is uniquely qualified to litigate the constitutionality of the State’s interference with,

or discrimination against, [a woman’s decision to terminate her pregnancy].”

Singleton v. Wulff, 428 U.S. 106, 117, 96 S. Ct. 2868, 2875 (1976).

The ability of a physician to perform an abortion in a clinic rather than a

hospital affects a woman’s exercise of her right to decide whether to terminate her

pregnancy. In this case, both the physicians and the clinics have demonstrated a

concrete legal interest in the enforcement of the restriction because (1) they risk

criminal prosecution if they ignore it and (2) the medical director of the Planned

Parenthood clinic in Nashville intends to begin providing abortions at the clinic after

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the first three months of pregnancy if the current restriction is invalidated. See Akron

Ctr. for Reproductive Health v. City of Akron, 479 F. Supp. 1172, 1214-15 (N.D.

Ohio 1979), aff’d in part and rev’d in part on other grounds, 462 U.S. 416, 103 S.

Ct. 2481 (1983) (finding standing when a clinic director expressed a desire to perform

abortions after the first trimester). Based on this record, we find that both the Planned

Parenthood plaintiffs and the physician plaintiffs have standing to challenge the

hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2).

III.

We turn next to the role that courts should play in litigation challenging the

constitutionality of a state statute. In this case, the trial court undertook to “salvage”18

the statute by broadly interpreting several of its challenged provisions. By doing so,

the trial court exceeded its proper role in at least three instances and thereby usurped

prerogatives exclusively within the province of the General Assembly.

A.

The trial court manifested a keen interest throughout the proceedings in

reconciling Tenn. Code Ann. §§ 39-15-201, -202 with current medical practice. It

appointed experts in accordance with Tenn. R. Evid. 70619 and aggressively

questioned the witnesses concerning their understanding of proper medical practice.

The trial court frequently signaled its intention to propose revisions to the abortion

statutes to conform them to the standards of the American College of Obstetricians

and Gynecologists20 and to reconcile them with the advances in medical science

occurring since the statutes were first enacted.21

18

In a memorandum elaborating on its first opinion, the trial court observed that “each

provision of the statute which was salvaged by the Court is obviously enforceable only as interpreted

by the Court in the preceding opinion.”

19

The trial court designated four physicians as court-appointed experts in accordance with

Tenn. R. Evid. 706. The two physicians who testified in support of the statutes’ constitutionality had

tried unsuccessfully to intervene as parties before the trial. The two physicians who opposed the

statutes were experts retained by the Planned Parenthood plaintiffs.

20

See American College of Obstetricians & Gynecologists, Standards for Obstetric-

Gynecologic Services (7th ed. 1989) (“ACOG Standards”).

21

Specifically, the trial court recommended that the General Assembly (1) amend the

definition of “hospital” in Tenn. Code Ann. § 39-15-201(c)(2) to include ambulatory surgical centers

(continued...)

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In its opinions, memoranda, and orders, the trial court eventually altered the

wording and meaning of two portions of Tenn. Code Ann. § 39-15-201 and six

portions of Tenn. Code Ann. § 39-15-202. It construed the phrase “first three (3)

months of pregnancy” in Tenn. Code Ann. § 39-15-201(c)(1) to mean “first trimester”

or “fourteen (14) weeks from the first day of a woman’s last menstrual period or

twelve (12) weeks from conception.” The trial court also construed the word

“hospital” in Tenn. Code Ann. § 39-15-201(c)(2) to include “ambulatory surgical

center” for abortions performed up to eighteen weeks from a woman’s last menstrual

period.

The trial court construed the requirement in Tenn. Code Ann. § 39-15-202(b)

that the woman be “orally informed by her attending physician” of certain statutorily

required information to permit physicians to “personally provide the mandated

information or personally confirm with the patient that she has been given the

information.” The trial court also interpreted Tenn. Code Ann. § 39-15-202(b)(5) to

require physicians to respond to a patient’s request for information by providing a list

of services and agencies “reasonably known” to them. In addition, the trial court

removed the word “or” between Tenn. Code Ann. § 39-15-202(b)(5) and -202(b)(6),

construed the phrase “parents or legal guardians” in Tenn. Code Ann. § 39-15-

202(f)(1) to mean “parent or legal guardian,” and construed the word “health” in

Tenn. Code Ann. § 39-15-202(f)(2)(B) to include “psychological” health. Finally,

the trial court interpreted the word “life” in the medical emergency exception in Tenn.

Code Ann. § 39-15-202(h) (Supp. 1989)22 to mean “life and health.”

B.

The constitutional doctrine of separation of powers shapes the courts’ power

to construe statutes that have come under constitutional attack. See Ashe v. Leech,

653 S.W.2d 398, 401 (Tenn. 1983); Peay v. Nolan, 157 Tenn. 222, 234, 7 S.W.2d

815, 818 (1928). Tenn. Const. art. II, § 3 vests all legislative authority in the General

21

(...continued)

and (2) amend the judicial bypass provision in the parental notification statute to require a second

physician’s opinion. The trial court was also prepared to appoint one of the State’s expert witnesses

to prepare a “model code relating to informed consent for abortions in Tennessee.”

22

Tenn. Code Ann. § 39-15-202(h) (Supp. 1989) is currently codified at Tenn. Code Ann. §

39-15-202(g) (1997) as a result of the repeal of Tenn. Code Ann. § 39-15-202(f) in 1995.

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Assembly, and Tenn. Const. art. II, § 2 prohibits the other two departments of

government from exercising legislative power. The General Assembly’s legislative

power is limited only by the federal and state constitutions. See Williams v. Carr,

218 Tenn. 564, 578, 404 S.W.2d 522, 529 (1966); Smiddy v. City of Memphis, 140

Tenn. 97, 104-05, 203 S.W. 512, 514 (1918).

The General Assembly, not the courts, is responsible for the formulation of the

state’s public policy that is not already embodied in the state and federal

constitutions. See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997);

Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996); Cooper v. Nolan, 159 Tenn. 379,

386, 19 S.W.2d 274, 276 (1929); Cavender v. Hewitt, 145 Tenn. 471, 475, 239 S.W.

767, 768 (1922). Thus, when the constitutionality of a statute has been called into

question, the courts must first ascertain the purpose and effect of the statute and then

must determine whether the statute conforms to the applicable constitutional

requirements. See Peay v. Nolan, 157 Tenn. at 235, 7 S.W.2d at 818. The courts will

invalidate a statute only when it clearly contravenes either the state or the federal

constitution. See Holly v. City of Elizabethton, 193 Tenn. 46, 53, 241 S.W.2d 1001,

1004-05 (1951); Soukup v. Sell, 171 Tenn. 437, 441, 104 S.W.2d 830, 831 (1937).

A constitutional challenge does not give the courts license to second-guess the

General Assembly’s policy judgments or to import their own views into the statutory

text. See National Broiler Marketing Ass’n v. United States, 436 U.S. 816, 827, 98

S. Ct. 2122, 2130 (1978). Nor may the courts review the statute’s wisdom, necessity,

expediency, or desirability. See Nashville Mobilephone Co. v. Atkins, 536 S.W.2d

335, 340 (Tenn. 1976); Dennis v. Sears, Roebuck & Co., 223 Tenn. 415, 426, 446

S.W.2d 260, 266 (1969); Estep v. State, 183 Tenn. 325, 335, 192 S.W.2d 706, 710

(1946). The remedies for these ills are entrusted to the public, not the courts. See

State v. Lindsay, 103 Tenn. 625, 640, 53 S.W. 950, 954 (1899); Henley v. State, 98

Tenn. 665, 679, 41 S.W. 352, 354 (1897); State ex rel. Coleman v. Campbell, 3 Tenn.

Cas. (Shannon) 355, 366 (1875).

The traditional canons of statutory construction guide the inquiry into a

statute’s purpose and effect. The courts ascertain a statute’s purpose from the plain

and ordinary meaning of its language. See Westland West Community Ass’n v. Knox

County, 948 S.W.2d 281, 283 (Tenn. 1997); Riggs v. Burson, 941 S.W.2d 44, 54

-13-

(Tenn. 1997). Because the courts must give effect to unambiguous statutes, see

Spencer v. Towson Moving & Storage, Inc., 922 S.W.2d 508, 510 (Tenn. 1996), there

is no room for applying the rules of construction when the language is plain and clear.

See Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 842 (Tenn. 1996); Anderson v.

Outland, 210 Tenn. 526, 532, 360 S.W.2d 44, 47 (1962). Thus, when the words of

a statute clearly mean one thing, the courts cannot give them another meaning under

the guise of construing them. See Henry v. White, 194 Tenn. 192, 198, 250 S.W.2d

70, 72 (1952); State ex rel. Barksdale v. Wilson, 194 Tenn. 140, 144-45, 250 S.W.2d

49, 51 (1952); Mathes v. State, 173 Tenn. 511, 516, 121 S.W.2d 548, 550 (1938).

The courts also have a duty to use the canons of construction to make sense

rather than nonsense out of statutes. See West Virginia Univ. Hospitals, Inc. v. Casey,

499 U.S. 83, 101, 111 S. Ct. 1138, 1148 (1991); McClellan v. Board of Regents, 921

S.W.2d 684, 689 (Tenn. 1996); Mercy v. Olsen, 672 S.W.2d 196, 200 (Tenn. 1984).

Whenever possible, we must employ the canons to save statutes, not to destroy them.

See Scales v. State, 181 Tenn. 440, 443, 181 S.W.2d 621, 622 (1944). Accordingly,

we begin by presuming that the challenged statute is constitutional. See Vogel v.

Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996); In re Burson, 909

S.W.2d 768, 775 (Tenn. 1995). When faced with a choice between two plausible

constructions of a statute, the courts should adopt the construction that avoids

undermining the statute’s constitutionality. See Davis-Kidd Booksellers, Inc. v.

McWherter, 866 S.W.2d 520, 529-30 (Tenn. 1993); State v. Lyons, 802 S.W.2d 590,

592 (Tenn. 1990); Railroad v. Crider, 91 Tenn. 489, 506, 19 S.W. 618, 622 (1892).

But, as helpful as this canon may be in close cases, it does not authorize the courts

to rewrite statutes enacted by the General Assembly. See Chapman v. United States,

500 U.S. 453, 464, 111 S. Ct. 1919, 1927 (1991); Heckler v. Mathews, 465 U.S. 728,

741-42, 104 S. Ct. 1387, 1396 (1984).

In the final analysis, altering or amending statutes is a uniquely legislative

prerogative. See United States v. National Treasury Employees Union, 513 U.S. 454,

479 n.26, 115 S. Ct. 1003, 1019 n.26 (1995); Richardson v. Tennessee Bd. of

Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995); Manahan v. State, 188 Tenn. 394, 397,

219 S.W.2d 900, 901 (1949). The courts cannot use the canons of construction to

amend statutory language. See Shelby County Election Comm’n v. Turner, 755

S.W.2d 774, 777-78 (Tenn. 1988); Town of Mount Carmel v. City of Kingsport, 217

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Tenn. 298, 306, 397 S.W.2d 379, 382 (1965); McBrayer v. Dixie Mercerizing Co.,

176 Tenn. 560, 569, 144 S.W.2d 764, 768 (1940). The far better practice is to leave

necessary amendments to the General Assembly -- the governmental body

constitutionally empowered to make them. See 2A Norman J. Singer, Statutes and

Statutory Construction § 47.38 (5th ed. 1992).

Even though the courts should strive to avoid tampering with the text of a

statute, see United States v. National Treasury Employees Union, 513 U.S. at 478,

115 S. Ct. at 1019, they are not entirely without authority to modify statutory text.

The courts should exercise their authority with unusual caution and only in narrowly

defined circumstances because judicial rewriting of statutes provides a disincentive

for careful legislative drafting in the first instance, see Reno v. ACLU, ___ U.S. ___,

___ n.50, 117 S. Ct. 2329, 2351 n.50 (1997); Osborne v. Ohio, 495 U.S. 103, 121,

110 S. Ct. 1691, 1702 (1990), and also creates the risk of inadvertent judicial

infringement on a legislative prerogative.

Courts may supply missing words to render a statute intelligible when the

context clearly demonstrates that the words were omitted inadvertently or mistakenly.

See Metropolitan Gov’t v. Poe, 215 Tenn. 53, 74, 383 S.W.2d 265, 274 (1964); Scales

v. State, 181 Tenn. at 443, 181 S.W.2d at 622; Riggins v. Tyler, 134 Tenn. 577, 581-

82, 184 S.W. 860, 861 (1916). The court may likewise remove words from a statute

in order to avoid absurdity as long as the real purpose of the statute is clear. See City

of Bristol v. Bank of Bristol, 159 Tenn. 647, 649, 21 S.W.2d 620, 621 (1929). The

courts cannot, however, rewrite statutes in order to conform them to constitutional

requirements, see Reno v. ACLU, ___ U.S. at ___, 117 S. Ct. at 2351; Virginia v.

American Booksellers Ass’n, 484 U.S. 383, 397, 108 S. Ct. 636, 645 (1988), or to

mold them to conform them to their own views of prudent public policy. See United

States v. Rutherford, 442 U.S. 544, 555, 99 S. Ct. 2470, 2477 (1979); Nashville

Mobilephone Co. v. Atkins, 536 S.W.2d at 340.

C.

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We now apply these principles to six of the eight provisions “salvaged” by the

trial court.23 We find that the trial court construed three provisions correctly but

exceeded its authority by essentially rewriting the remaining three provisions.

1.

TENN. CODE ANN. § 39-15-201(c)(1)

Tenn. Code Ann. § 39-15-201(c)(1) states that abortion procedures may be

legally performed “[d]uring the first three (3) months of pregnancy” as long as the

woman has consented and the procedure is performed by an attending physician.24

The phrase “first three (3) months of pregnancy” may reasonably be interpreted in

more than one way because of ambiguities concerning when the period begins and

the duration of the word “month.” Thus, the trial court properly undertook to

construe this phrase in a way that gives the fullest possible effect to the General

Assembly’s purpose and at the same time avoids undermining the statute’s

constitutionality.

The medical testimony concerning the physiology of human reproduction was

remarkably consistent. Both the physicians who opposed the statutes and those who

favored them agreed that the duration of a typical human pregnancy is 265 days and,

therefore, that pregnancy cannot be neatly subdivided into three ninety-day periods.

They also agreed that the length of a pregnancy could be measured either from the

date of conception or from the first day of a woman’s last menstrual period25 and that

obstetricians and gynecologists customarily calculated a fetus’s gestational age

beginning with the first day of a woman’s last menstrual period.

23

We need not consider the trial court’s construction of Tenn. Code Ann. § 39-15-202(f)(1)

or -202(f)(2)(B) because these provisions were repealed by implication in 1989. See Planned

Parenthood Ass’n of Nashville, Inc. v. McWherter, 817 S.W.2d at 16. The trial court’s construction

of these two provisions has no bearing on the interpretation or enforcement of the parental consent

provisions in Tenn. Code Ann. §§ 37-10-301, -307 which were revived by the General Assembly

in 1995.

24

The term “physician” includes only persons licensed to practice medicine or surgery in

accordance with Tenn. Code Ann. § 63-6-201(1997) and persons licensed as osteopathic physicians

in accordance with Tenn. Code Ann. §§ 63-9-101, -114 (1997).

25

These two dates are different since conception can occur approximately two weeks after

the first day of a woman’s last menstrual period.

-16-

The physicians also agreed that the term “month” was not medically helpful

because the pace of fetal development required shorter measurement intervals and

because it could refer to calendar months, thirty-day months, or even four-week

months. Accordingly, the physicians testified that obstetricians and gynecologists

measured pregnancies in terms of weeks rather than months or trimesters. They also

agreed that the term “first trimester” refers to the first fourteen weeks of pregnancy

measured from the first day of a woman’s last menstrual period, that the term “second

trimester” refers to the fifteenth through the twenty-seventh week of pregnancy, and

that the term “third trimester” is commonly understood by physicians to include the

time of pregnancy remaining after the twenty-seventh week of pregnancy.

The phrase “first three (3) months of pregnancy” in Tenn. Code Ann. § 39-15-

201(c)(1) requires judicial construction because it can reasonably be interpreted more

than one way. Our examination of the context in which the phrase appears, as well

as its legislative history, leads us to conclude that the General Assembly employed

the phrase in order to square Tennessee’s abortion statutes with the trimester

framework first established in the Roe v. Wade decision. We find no definitive

indication in the statute’s legislative history of a clear legislative purpose concerning

when this period should begin or precisely whether it should consist of eighty-four

days (three four-week months), ninety days (three thirty-day months), or ninety-two

days (three calendar months, including two thirty-one day months).

Defining this phrase in a way that will be understood both by laypersons and

the medical profession is necessary for two reasons. First, the phrase is an integral

part of a statutory scheme that imposes criminal liability on persons who perform

abortions inconsistent with its requirements. Second, the difference between eighty-

four and ninety-two days can have a profound effect on a woman’s decision whether

or not to terminate her pregnancy. Accordingly, we find that the trial court, following

the weight of the medical evidence presented, could properly define the term “first

three (3) months of pregnancy” to mean “the first fourteen weeks of pregnancy

measured from the first day of a woman’s last menstrual period.”

2.

TENN. CODE ANN. § 39-15-202(b)(5)

-17-

The informed consent provision enacted in 1978 required that a woman receive

certain statutorily defined information before obtaining an abortion. Tenn. Code

Ann. § 39-15-202(b)(5) requires that a woman be informed that if she chooses not to

have an abortion that “numerous public and private agencies and services are

available to assist her during her pregnancy and after the birth of her child . . .

whether she wishes to keep her child or place him [or her] for adoption.” It also

requires that a woman be informed that “her physician will provide her with a list of

such agencies and the services available if she so requests.”

The physicians opposing the abortion statutes argued that this provision

requires physicians to provide women with a list of every available agency and

service providing prenatal, delivery, and post-delivery services to pregnant mothers

whether the physician was aware of the agency or not. They complained that

physicians who performed abortions could be subjected to criminal liability if they

did not know about every single public or private agency that might help pregnant

women decide whether to keep their child instead of having an abortion. In response

to these concerns, the trial court interpreted Tenn. Code Ann. § 39-15-202(b)(5) to

require physicians to inform their patients of the agencies and services “reasonably

known to the physician.”

The legislative debates concerning this provision do not substantiate the claim

that the General Assembly enacted Tenn. Code Ann. § 39-15-202(b)(5) to require

physicians to inform themselves of every single public or private agency that could

possibly provide services to pregnant women. Likewise, they provide no support for

the notion that the General Assembly desired to subject physicians to criminal

prosecution if they did not provide their patients, on request, with a list containing

each and every one of these agencies. Rather, the General Assembly’s purpose was

to make sure that women considering a voluntary termination of their pregnancy

knew that they would be able to obtain assistance if they decided to continue their

pregnancy.

While the phrasing of Tenn. Code Ann. § 39-15-202(b)(5) is awkward, it

cannot reasonably be interpreted to require physicians, under penalty of criminal

prosecution, to be aware of every single agency that might possibly provide services

to pregnant women who desire assistance. The phrase “list of such agencies and the

-18-

services available” does not connote a list of all agencies and services but rather a

representative list of such agencies and services. Every physician and clinical

employee testified that they were aware of agencies providing services to women who

decide to continue their pregnancy, and most testified that they already maintained

a list of these agencies or that they had referred women to these agencies in the past.

Accordingly, the trial court properly construed Tenn. Code Ann. § 39-15-202(b)(5)

to require physicians to provide a representative list of agencies reasonably known

to them.

3.

THE “OR” FOLLOWING TENN. CODE ANN. § 39-15-202(b)(5)

The physicians opposing the abortion statutes also complain that the inclusion

of the word “or” between Tenn. Code Ann. § 39-15-202(b)(5) and Tenn. Code Ann.

§ 39-15-202(b)(6) renders the entire informed consent provision incomprehensible.

In response, the Attorney General introduced evidence that the original legislation

enacted by the General Assembly did not contain the word “or” and that it first

appeared in the 1982 replacement of Volume 7 of the Code because of an “editorial

error.” Accordingly, the trial court “struck” the word from the statute.

The original version of the informed consent provision enacted in 1978 did not

contain the word “or.” See Act of March 23, 1978, ch. 847, 1978 Tenn. Pub. Acts

1078, 1079. Nor did the original codified version of the legislation. See Tenn. Code

Ann. § 39-302 (Supp. 1978). As reflected in the affidavit of the Executive Secretary

of the Tennessee Code Commission, the “or” first appeared in 1982 after the Code

Commission replaced Volume 7 of the Code. See Tenn. Code Ann. § 39-4-202(b)

(1982 replacement volume).

These facts illustrate a classic circumstance in which the courts may properly

elide a word from a statute. The word was mistakenly included in the codified

versions of the statute appearing after 1982 even though it had not been in the

legislation enacted by the General Assembly. Including the conjunction “or” in Tenn.

Code Ann. § 39-15-202(b) causes the provision to become internally inconsistent and

-19-

contrary to the General Assembly’s purpose.26 Because the General Assembly clearly

intended that a woman must receive all the information specified in Tenn. Code Ann.

§ 39-15-202(b) before terminating her pregnancy, the trial court properly elided the

“or” between Tenn. Code Ann. § 39-15-202(b)(5) and Tenn. Code Ann. § 39-15-

202(b)(6) from the statute.

4.

TENN. CODE ANN. § 39-15-201(c)(2)

Tenn. Code Ann. § 39-15-201(c)(2) requires that “[a]fter three (3) months, but

before viability of the fetus,” abortions must be performed in a “hospital as defined

in § 68-11-201, licensed by the state department of health, or a hospital operated by

the state of Tennessee or a branch of the federal government.” In response to the

testimony that abortions between fourteen and eighteen weeks after the first day of

a woman’s last menstrual period could be performed safely in ambulatory surgical

centers, the trial court construed the word “hospital” in Tenn. Code Ann. § 39-15-

201(c)(2) to include ambulatory surgical centers “for abortions performed up to

eighteen weeks measured from the first day of a woman’s last menstrual period.” We

have determined that the plain meaning of Tenn. Code Ann. § 39-15-201(c)(2) does

not permit this construction.

The hospitalization for “second trimester” abortions originated with the 1973

legislation that rewrote Tennessee’s abortion statutes in response to the Roe v. Wade

decision.27 At the time the General Assembly enacted this statute, the broad

definition of “hospital” included

any institution . . . represented and held out to the general

public as ready, willing and able to furnish care,

accommodations, facilities and equipment for the use, in

connection with the services of a physician of one (1) or

more nonrelated persons who may be suffering from

26

Tenn. Code Ann. § 39-15-202(b) states that a woman must be informed of “the following

facts” and then lists the six “facts” that must be provided. This construction means that the woman

must be informed of each of the listed facts. However, the conjunction “or” may have either an

inclusive or an exclusive sense. See Bryan A. Garner, A Dictionary of Modern Legal Usage 624 (2d

ed. 1995). If “or” is interpreted in its exclusive sense, it would be inconsistent with the provision’s

apparent inclusive meaning.

27

See Act of May 4, 1973, ch. 235, § 1(e)(2), 1973 Tenn. Pub. Acts 901, 903, allowing

abortions “[a]fter three (3) months, but before viability of the fetus, if the abortion . . . is performed

. . . in a hospital as defined in Section 53-1301 of this Code.”

-20-

deformity, injury, or disease or from any other condition

for which nursing, medical or surgical services would be

appropriate for care, diagnosis or treatment.

Tenn. Code Ann. § 53-1301(a) (Supp. 1973). The statutes regulating health care

facilities did not distinguish between hospital and ambulatory surgical centers, and

the definition of “hospital” in Tenn. Code Ann. § 53-1301(a) was broad enough to

include ambulatory surgical centers.

In 1976, the General Assembly amended the statutes regulating health care

facilities to recognize a new type of facility called an “ambulatory surgical treatment

center.”28 These facilities were defined as:

[A]ny institution, place or building devoted primarily to

the maintenance and operation of a facility for the

performance of surgical procedures or any facility in which

a medical or surgical procedure is utilized to terminate a

pregnancy. Such facilities shall not provide beds or other

accommodations for the overnight stay of patients.

Individual patients shall be discharged in an ambulatory

condition without danger to the continued well being of the

patients or shall be transferred to a hospital.

Tenn. Code Ann. § 53-1301(o) (Supp. 1976). Three years later, the General

Assembly amended the definition of “ambulatory surgical treatment centers” to make

clear that patients receiving abortions at these facilities would not be permitted to stay

in one of these facilities for more than twelve hours.29 This current definition of

“ambulatory surgical treatment center” is codified at Tenn. Code Ann. § 68-11-

201(3).

By its own terms, the definition of “ambulatory surgical treatment center”

recognizes that ambulatory surgical treatment centers are not hospitals.30 This

differentiation is also reflected in the Tennessee Health Planning and Resource

Development Act of 1987, see Tenn. Code Ann. § 68-11-102(4)(A) (1996) (definition

of “health care institution” that differentiates between a “hospital” and an

“ambulatory surgical treatment center”), and in the regulations of the Tennessee

28

See Act of Feb. 25, 1976, ch. 471, 1976 Tenn. Pub. Acts 185.

29

See Act of Mar. 15, 1979, ch. 77, 1979 Tenn. Pub. Acts 123.

30

Tenn. Code Ann. § 68-11-201(3) states that patients at an ambulatory surgical treatment

center must be either discharged in ambulatory condition or transferred to a hospital.

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Health Facilities Commission.31 Accordingly, under the law existing since 1976,

hospitals and ambulatory surgical treatment centers are entirely different entities.

When called upon to construe statutes, the courts must presume that the

General Assembly is aware of its prior enactments, see Hicks v. State, 945 S.W.2d

706, 707 (Tenn. 1997); Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.

1994), and of the state of the law at the time it enacts new legislation. See Riggs v.

Burson, 941 S.W.2d 44, 54 (Tenn. 1997); Still v. First Tenn. Bank, N.A., 900 S.W.2d

282, 285 (Tenn. 1995). Thus, when the General Assembly differentiated between

ambulatory surgical treatment centers and hospitals in 1976, we must presume that

it was aware of the existing hospitalization requirement for second trimester abortions

and, therefore, that it did not intend for second trimester abortions to be performed

in ambulatory surgical treatment centers. The General Assembly has revisited the

abortion statutes on nine separate occasions since 1976, and on none of these

occasions has it altered the hospitalization requirement in Tenn. Code Ann. § 39-15-

201(c)(2). Accordingly, the trial court erroneously undertook to amend Tenn. Code

Ann. § 39-15-201(c)(2) when it construed it to permit abortions between the

fourteenth and eighteenth weeks following a woman’s last menstrual period to be

performed in ambulatory surgical treatment centers.

5.

TENN. CODE ANN. § 39-15-202(b)

When the General Assembly enacted the informed consent requirement in

1978, it required that a woman obtaining an abortion must be “orally informed by her

attending physician” of certain “facts.” Following the testimony of several

physicians and counselors employed by Planned Parenthood that the pre-abortion

counseling and informed consent discussions were performed by persons other than

the physician performing the abortion, the trial court construed Tenn. Code Ann. §

39-15-202(b) to require the attending physician either to “personally provide the

mandated information” or to “personally confirm with the patient that she has been

31

Tenn. Comp. R. & Regs. r. 0720-2-.01(2) (1994) defines an ambulatory surgical treatment

center as “any institution, place or building devoted primarily to the performance of surgical

procedures on an outpatient basis.” The definition of “hospital” in Tenn. Comp. R. & Regs. r. 0720-

2-.01(9) (1995) simply refers to the definition in Tenn. Code Ann. § 68-11-201(21).

-22-

given the information.” Neither the plain meaning of the words in the statute nor the

statute’s legislative history supports this construction.

The language of Tenn. Code Ann. § 39-15-202(b) is clear and unambiguous.

It requires that a woman’s “attending physician” must be the person who provides the

required information. On its face, the statute does not permit the physician to

delegate his or her statutory counseling and informed consent obligation to any other

person. The certainty of the language is reinforced by the substance of the

legislators’ discussions about this provision on third and final reading. The House

sponsor was asked repeatedly, “Who is going to have the authority to do this

explaining?”. On every occasion, the House sponsor responded that “this will be her

attending physician. It will be her doctor that [sic] does this.” Accordingly, the trial

court erred by importing language into Tenn. Code Ann. § 39-15-202(b) that is not

warranted by the text and that was not desired by the General Assembly.

6.

TENN. CODE ANN. § 39-15-202(h) (Supp. 1989)32

The trial court’s final construction of the abortion statutes relates to the medical

emergency provision in Tenn. Code Ann. § 39-15-202(h) that empowers physicians

to bypass the informed consent, waiting period, and parental notification provisions

in Tenn. Code Ann. § 39-15-202 when the physician certifies that “an abortion . . .

[is] necessary to preserve the life of the pregnant woman.” The trial court construed

Tenn. Code Ann. § 39-15-202(h) to provide an exception not only to the requirements

in Tenn. Code Ann. § 39-15-202 but also to those in Tenn. Code Ann. § 39-15-201.

It also construed Tenn. Code Ann. § 39-15-202(h) to apply to circumstances where

the “health of a woman is threatened.” The trial court again exceeded its authority.

Its construction of Tenn. Code Ann. § 39-15-202(h) is not supported by the plain

meaning of the statutory text or by the legislative history of the abortion statutes.

32

Tenn. Code Ann. § 39-15-202(h) (Supp. 1989) is currently codified at Tenn. Code Ann. §

39-15-202(g) (1997). Since the statute’s substance has remained unchanged, we will continue to

refer to it as Tenn. Code Ann. § 39-15-202(h), as did the trial court.

-23-

The United States Supreme Court held in Roe v. Wade that the states have “an

important and legitimate interest in preserving and protecting the health of the

pregnant woman.” Roe v. Wade, 410 U.S. at 162, 93 S. Ct. at 731. Accordingly, the

Court held that the states could enact regulations of second trimester abortions that

reasonably relate to the preservation and protection of maternal health. See Roe v.

Wade, 410 U.S. at 163, 93 S. Ct. at 732. The Court also held that states may prohibit

abortions after a fetus becomes viable “except when it is necessary to preserve the life

or health33 of the mother.” Roe v. Wade, 410 U.S. at 163-164, 93 S. Ct. at 732.

When the General Assembly rewrote Tennessee’s abortion statutes in 1973, it

endeavored to comply strictly with the medical emergency requirement in the Roe v.

Wade decision. The only restrictions placed on abortions prior to viability were (1)

that the procedure must be performed by a licensed physician, (2) that the woman

must consent to the procedure, and (3) that the procedure must be performed in a

hospital if it occurs after three months but before viability. The General Assembly

also prohibited abortions after the fetus became viable unless the woman’s attending

physician certified in writing that the abortion is “necessary to preserve the life or

health of the mother.” Tenn. Code Ann. § 39-15-201(c)(3).34

When the General Assembly began placing additional restrictions on a

woman’s right to decide whether to terminate her pregnancy, it declined to include

medical emergency exceptions as broad as the one in Tenn. Code Ann. § 39-15-

201(c)(3). When it first enacted the informed consent and waiting period

requirements in 1978, the General Assembly did not include a medical emergency

exception.35 During the next legislative session, however, the General Assembly

added two medical emergency exceptions applicable to the informed consent and

waiting period requirements. First, Tenn. Code Ann. § 39-15-202(d)(3) permitted a

physician to bypass the waiting period if he or she determined that waiting two days

“would endanger the life of the pregnant woman.”36 Second, Tenn. Code Ann. § 39-

33

The Court explained in a companion case to Roe v. Wade that the term “health”

encompasses a woman’s psychological as well as physical well-being. See Doe v. Bolton, 410 U.S.

179, 192, 93 S. Ct. 739, 747 (1973).

34

See Act of May 4, 1973, ch. 235, § 1(e)(3), 1973 Tenn. Pub. Acts 901, 903.

35

See Act of Mar. 23, 1978, ch. 847, 1978 Tenn. Pub. Acts 1078.

36

See Act of April 30, 1979, ch. 287, § 3, 1979 Tenn. Pub. Acts 590, 591.

-24-

15-202(h) provided a medical emergency exception for all requirements in Tenn.

Code Ann. § 39-15-202 “in those situations where an abortion is certified . . . as

necessary to preserve the life of the pregnant woman.”37

Under the statutes as enacted by the General Assembly, women may obtain

abortions after their fetus is viable if their attending physician certifies that the

abortion is necessary to preserve their life or health. However, women cannot receive

an abortion until they comply with the informed consent and waiting period

requirements in Tenn. Code Ann. § 39-15-202 unless their attending physician

certifies that either the informed consent requirement or the waiting period or both

would endanger their lives.38

The United States Supreme Court has made it clear that states cannot interfere

with a woman’s decision to have an abortion if continuing the woman’s pregnancy

would constitute a threat to her health. See Planned Parenthood v. Casey, 505 U.S.

at 880, 112 S. Ct. at 2822; Harris v. McRae, 448 U.S. 297, 316, 100 S. Ct. 2671,

2687-88 (1980); Roe v. Wade, 410 U.S. at 164-65, 93 S. Ct. at 732. Thus, the trial

court’s construction of Tenn. Code Ann. § 39-15-202(h) clearly stemmed from its

desire to save the constitutionality of the abortion statutes. While courts should,

when possible, construe statutes to avoid the danger of unconstitutionality, see Ohio

v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S. Ct. 2972, 2980

(1990), they cannot adopt a construction that is not fairly supported by the plain

meaning of the statute’s language or that is either inconsistent with or not clearly

supported by the purpose of the statute.

Medical emergency exceptions to protect the mother’s health have been the

subject of intense public and legislative debate ever since the Roe v. Wade decision

was issued. Because of the United States Supreme Court’s broad construction of the

term “health” in Doe v. Bolton, 410 U.S. at 192, 93 S. Ct. at 747, many have argued

that to construe medical emergency exceptions to protect a mother’s health was to

permit “abortion on demand.” Even the justices themselves have been divided on this

37

See Act of April 30, 1979, ch. 287, § 4, 1979 Tenn. Pub. Acts 590, 591.

38

Women under the age of eighteen years of age may circumvent the parental consent

requirements in Tenn. Code Ann. § 37-10-303 if their physician determines in his or her best medical

judgment that “a medical emergency exists that so complicates the pregnancy as to require an

immediate abortion.” Tenn. Code Ann. § 37-10-305.

-25-

issue. Compare Planned Parenthood v. Casey, 505 U.S. at 887, 112 S. Ct. at 2826

(stating that even the broadest reading of Roe has not suggested there is a

constitutional right to abortion on demand) with Planned Parenthood v. Casey, 505

U.S. at 995, 112 S. Ct. at 2882 (Scalia, J., concurring in the judgment and dissenting

in part) (characterizing Roe v. Wade as a mandate for abortion on demand);

Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 782-

83, 106 S. Ct. at 2190 (Burger, C.J., dissenting) (stating that the Court’s opinion

plainly undermines its earlier rejection of the idea of abortion on demand).

The legislative concern over the potential expansive interpretation of

provisions that permit abortions to protect the health of the mother has manifested

itself in the context of debates concerning public funding for abortions and, more

recently, with regard to legislation proscribing “partial-birth” abortions. In order to

avoid the expansive interpretation of the term “health,” both federal and state

legislators have limited the medically necessary abortions that must be funded under

the Medicaid Program, Title XIX of the Social Security Act, to those where physical

disorders, injuries, or illnesses would place the woman in danger of death unless an

abortion is performed. See Planned Parenthood Affiliates of Michigan v. Engler, 73

F. 3d 634, 638 (6th Cir. 1996) (quoting 139 Cong. Rec. S12,581 (daily ed. Sept. 28,

1993) (statement of Senator Hatch)); Act of April 28, 1992, ch. 1018, § 10, Item 4,

1992 Tenn. Pub. Acts 1059, 1090-91 (containing limitations on the use of state funds

for abortions); House Bill 3309 / Senate Bill 3307, 100th General Assembly (1998),

§ 10, Item 4 (limiting the use of state funds to abortions “where an abortion is

necessary to save the life of the mother or where the pregnancy is the result of an act

of rape or incest”). Likewise, the General Assembly has permitted “partial-birth”

abortions only when they are “necessary to save the life of the mother whose life is

endangered by a physical disorder, illness or injury.” Tenn. Code Ann. § 39-15-

209(c) (1997).39

39

The Congress enacted H.R. 1833, the “Partial-Birth Abortion Ban Act of 1995" which

would have limited partial-birth abortions to circumstances where they were necessary to save the

life of the mother. During the United States Senate’s debate over an amendment proposed by

Senator Boxer that would have permitted partial-birth abortions to protect the mother’s health,

Senator Smith pointed out that the amendment would be to permit partial-birth abortions on demand.

See 141 Cong. Rec. S18,074 (daily ed. Dec. 6, 1995) (statement of Senator Smith). The amendment

failed, and the President vetoed H.R. 1833 on April 10, 1996. The President stated in his veto

message that he would sign the bill if it contained an exception for “serious health consequences.”

Message to the House of Representatives Returning Without Approval Partial Birth Abortion

Legislation, 1 Pub. Papers 567, 568 (April 10, 1996); see also 142 Cong. Rec. H3338-01 (April 15,

(continued...)

-26-

Despite the testimony of the physicians who supported the statutes being

challenged in this case, the terms “life” and “health” in the context of emergency

medical exceptions do not mean the same thing as they are commonly understood to

mean. While there is consensus that abortions should be permitted to save the life of

the mother when she is in immediate danger, there is no consensus concerning

whether an emergency medical exception to save a mother’s life also includes

procedures to protect the mother from physical impairment or psychological

impairment that is not life-threatening or procedures to end a pregnancy when

childbirth would severely cripple a woman’s chance for a successful life herself.

The only reasonable interpretation of the plain meaning of Tenn. Code Ann.

§ 39-15-202(h) is that it permits bypassing the requirements of Tenn. Code Ann. §

39-15-202 only when “necessary to preserve the life of the pregnant woman.” A

review of the other statutes pertaining to abortions clearly demonstrates that the

General Assembly knows how to provide broader medical emergency exceptions

when it chooses to do so. It defined the medical emergency exception in general

terms in Tenn. Code Ann. § 39-15-201(c)(3) with regard to third trimester abortions

and in Tenn. Code Ann. § 37-10-305 with regard to the parental consent requirement.

Thus, we must conclude that the General Assembly purposely decided to limit the

scope of Tenn. Code Ann. § 39-15-202(h) to circumstances where bypassing the

procedures in Tenn. Code Ann. § 39-15-202 became necessary to preserve the

mother’s life. Accordingly, the trial court erred by interpreting Tenn. Code Ann. §

39-15-202(h) to apply in circumstances where the health of a woman is threatened.

IV.

A pivotal issue in this case concerns the appropriate standard for determining

the constitutionality of the challenged provisions of Tenn. Code Ann. §§ 39-15-201,

-202. Even though the constitutional challenges are based on the Constitution of

Tennessee, both parties draw legal support for their positions largely from federal

precedents construing the United States Constitution. The Planned Parenthood

plaintiffs assert that the Constitution of Tennessee requires nothing less than the strict

standard of review employed by the United States Supreme Court in Roe v. Wade.

39

(...continued)

1996).

-27-

The State responds that a woman’s fundamental right to refrain from procreating is

adequately protected using the “undue burden” standard employed by the United

States Supreme Court in Planned Parenthood v. Casey.

A.

The architects of our federal form of government looked to state constitutions

to provide the primary protection of individual liberties. Accordingly, neither the

Articles of Confederation nor the United States Constitution, as originally adopted,

contained a declaration of rights. See Robert Allen Rutland, The Birth of the Bill of

Rights, 1776-1791, at 78, 100, 106 (1955) (“Rutland”). When the First Congress

approved the Bill of Rights in 1789, its provisions were drawn largely from state

constitutions and bills of rights. See Edward Dumbauld, The Bill of Rights and What

It Means Today 160-65 (1957); Eugene W. Hickock, Jr., Introduction of the Bill of

Rights: Original Meaning and Current Understanding 17 (Eugene W. Hickock, Jr.,

ed. 1991); Craig R. Smith, To Form a More Perfect Union, The Ratification of the

Constitution and the Bill of Rights 1787-1791, at 128 (1993). Thus, most of the

provisions in the state and federal declarations of rights share a common ancestry.

See Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv.

L. Rev. 1147, 1159-61 (1993) (“Kahn”); Rutland, at 13, 74. Although their words

differ, these provisions embody restatements of fundamental principles commonly

accepted at the time. See State v. Staten, 46 Tenn. (6 Cold.) 233, 264 (1869); Wallace

McClure, State Constitution-Making With Especial Reference to Tennessee 211

(1916); Edward T. Sanford, The Constitutional Convention of 1796, Proceedings of

the Fifteenth Annual Meeting of the Bar Association of Tennessee 92, 108 (Nashville,

Marshall & Bruce Co. 1896).

The primacy of state declarations of rights continued until the ratification of

the post-Civil War amendments which, over time, altered the original structure of

federalism to allow federal protection for individual rights through the Due Process

and Equal Protection Clauses of the Fourteenth Amendment. Today many of our

personal liberties are protected by both the state and the federal constitutions.

The relationship between the protections of the state and federal constitutions

is well understood. The federal Bill of Rights provides a basic level of protection for

-28-

individual liberties, which state laws and constitutional provisions may not violate.

See McDaniel v. Paty, 435 U.S. 618, 628-29, 98 S. Ct. 1322, 1328-29 (1978); Girdner

v. Stephens, 48 Tenn. (1 Heisk.) 280, 283-84 (1870); Union Bank v. State, 17 Tenn.

(9 Yer.) 489, 494-95 (1836). However, state constitutions may provide greater

protection or may even protect rights that are not protected by the United States

Constitution. See State v. Barnett, 909 S.W.2d 423, 430 n.6 (Tenn. 1995); Burford

v. State, 845 S.W.2d 204, 207 (Tenn. 1992); Davis v. Davis, 842 S.W.2d 588, 600

(Tenn. 1992).40 As a result of the overlapping protections in the state and federal

constitutions, many state courts became accustomed to following the United States

Supreme Court’s lead in articulating constitutional principles. They conformed their

interpretations of state constitutional provisions to the United States Supreme Court’s

interpretation of analogous federal constitutional provisions.

In recent decades, state appellate courts began to place new emphasis on state

constitutions as independent sources of protections of personal liberties. The

soundness of many of these modern interpretations has been clouded by an ongoing

debate concerning the motivations for these decisions41 and by wide-spread academic

criticism of the quality of the scholarship and reasoning.42 The most widespread

concern is that state constitutions have become convenient vehicles for state judges

40

The Tennessee Supreme Court has specifically held that several provisions of the

Constitution of Tennessee provide broader protection than their federal counterparts. See, e.g., State

v. Marshall, 859 S.W.2d 289, 290-91, 294-95 (Tenn. 1993) (holding that the state constitution

provides broader protection for speech than the First and Fourteenth Amendments); State v. Black,

815 S.W.2d 166, 189, 192-93 (Tenn. 1991) (holding that the state constitution provides different

standards for determining what constitutes cruel and unusual punishment); State v. Jacumin, 778

S.W.2d 430, 435-36 (Tenn. 1989) (holding that Tenn. Const. art. I, § 7 requires different standards

for obtaining a search warrant than does the Fourth Amendment); Miller v. State, 584 S.W.2d 758,

759-61 (Tenn. 1979) (holding that the Ex Post Facto Clause of Tenn. Const. art. I, § 11 provides

greater protection than the Ex Post Facto Clause in U.S. Const. art. I, § 10, cl. 1).

41

Some commentators have suggested that these decisions represent efforts by state judges

to circumvent the perceived conservatism of the Burger and Rehnquist Courts. See Paul M. Bator,

The State Court and Federal Constitutional Liberties, 22 Wm. & Mary L. Rev. 605, 606 n.1 (1981);

Otis H. Stephens, Jr., The Tennessee Constitution and the Dynamics of American Federalism, 61

Tenn. L. Rev. 707, 708 (1994); Alan Tarr, Constitutional Theory and State Constitutional

Interpretation, 22 Rutgers L.J. 841, 845-47 (1991). On the other hand, defenders of these decisions

restore state constitutions to their proper place in the continuing constitutional dialogue. See Kahn,

106 Harv. L. Rev. at 1154; Frederic S. Le Clercq, The Process of Selecting Constitutional

Standards: Some Incongruities of Tennessee Practice, 61 Tenn. L. Rev. 573, 586-92 (1994).

42

See James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev.

761, 763 (1992); David Schuman, A Failed Critique of State Constitutionalism, 91 Mich. L. Rev.

274, 276 (1992).

-29-

who disagree with the holdings of the United States Supreme Court to transform their

personal beliefs and opinions into state constitutional doctrine.

In this climate, the courts should provide thorough explanations of their

interpretations of state constitutional provisions. See Summers v. Thompson, 764

S.W.2d 182, 188 (Tenn. 1988) (Drowota, J., concurring). Our understanding of the

provisions of the Constitution of Tennessee should be guided by the text of the

provision, the history of its adoption, our state’s unique history and tradition, the

fundamental values reflected in the provision, and the United States Supreme Court’s

construction of similar provisions in the United States Constitution. See A. E. Dick

Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62

Va. L. Rev. 873, 935-44 (1976). If we are to be the Constitution’s guardians43 and

the chief protectors of the fundamental principles it contains,44 we should not allow

constitutional principles to be shaped by judicial ingenuity or by individual judges’

personal preferences. See City of White House v. Whitley, No. 01A01-9612-CH-

00571, 1997 WL 331743, at *10 (Tenn. Ct. App. June 18, 1997) (Koch, J.,

dissenting), perm. app. granted (Tenn. Nov. 24, 1997).45

The interpretation of a constitutional provision should begin with its text. See

Shelby County v. Hale, 200 Tenn. 503, 510, 292 S.W.2d 745, 748 (1956); Prescott

v. Duncan, 126 Tenn. 106, 128, 148 S.W. 229, 234 (1912); Bank v. Cooper, 10 Tenn.

(2 Yer.) 599, 621-22 (1831) (Kennedy, J., concurring). The courts may illuminate the

meaning of the text by examining the reasonable understanding of the text when the

provision was adopted,46 the practices and usages in existence when the provision was

43

See Neely v. State, 63 Tenn. 174, 185 (1874); Eason v. State, 65 Tenn. 466, 477 (1873).

44

See Metropolitan Gov’t v. Tennessee State Bd. of Equalization, 817 S.W.2d 953, 955 (Tenn.

1991); Luehrman v. Taxing Dist., 70 Tenn. 425, 438 (1879) (stating that the court’s search for

meaning of constitutional provisions should not be guided by the judge’s own subjective notions of

unexpressed constitutional intent); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 573 (Tenn. Ct.

App. 1994).

45

The Tennessee Supreme Court heard oral argument in this case on April 2, 1998.

46

See Gaskin v. Collins, 661 S.W.2d 865, 867 (Tenn. 1983); Hatcher v. Bell, 521 S.W.2d 799,

803 (Tenn. 1974).

-30-

adopted,47 the common law, 48 and the contemporary legislative and judicial

construction of the provision.49 We may also consider pertinent historical documents

including journals of constitutional conventions,50 prior draft constitutions,51 and

other jurisdictions’ constructions of similar constitutional provisions.52

Earlier judicial decisions can also elucidate the meaning of a constitutional

provision. These precedents provide stability and continuity in our understanding of

the constitution’s meaning. See Monday v. Millsaps, 197 Tenn. 295, 298, 271 S.W.2d

857, 858 (1954); State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 303,

154 S.W. 1151, 1154 (1913). They should not, however, be used to perpetuate error,

see Board of Educ. v. Shelby County, 207 Tenn. 330, 365, 339 S.W.2d 569, 584

(1960); Arnold v. Mayor of Knoxville, 115 Tenn. 195, 202, 90 S.W. 469, 470 (1905),

or principles that no longer work. See State v. Kendricks, 891 S.W.2d 597, 603

(Tenn. 1994). The doctrine of stare decisis is not inflexible, see City of Memphis v.

Overton, 216 Tenn. 293, 298, 392 S.W.2d 98, 100 (1965), and should be used to

enable the law to adapt to changing conditions. See Metropolitan Gov’t v. Poe, 215

Tenn. 53, 80, 383 S.W.2d 265, 277 (1964); Shousha v. Matthews Drivurself Serv.,

Inc., 210 Tenn. 384, 389, 358 S.W.2d 471, 473 (1962).

B.

The Tennessee Supreme Court alluded to a woman’s federally protected right

to terminate her pregnancy several times prior to 1992. See Smith v. Gore, 728

S.W.2d 738, 751-52 (Tenn. 1987); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.

1977). In 1992, the court recognized for the first time that the Constitution of

47

See Ashe v. Leech, 653 S.W.2d 398, 401 (Tenn. 1983); Peay v. Nolan, 157 Tenn. 222, 230,

7 S.W.2d 815, 817 (1928); Pope v. Phifer, 50 Tenn. (3 Heisk.) 682, 687 (1871).

48

See Williams v. Taxing Dist., 84 Tenn. 531, 535 (1886).

49

See State v. Wilson, 80 Tenn. 246, 265 (1883).

50

See State ex rel. Cohen v. Darnell, 885 S.W.2d 61, 63 (Tenn. 1994); The Judges’ Cases,

102 Tenn. 509, 519-20, 53 S.W. 134, 136 (1899).

51

See State v. Marshall, 859 S.W.2d at 303 (Reid, C.J., concurring and dissenting); Paty v.

McDaniel, 547 S.W.2d 897, 902 (Tenn. 1977), rev’d on other grounds, 435 U.S. 618, 98 S. Ct. 1322

(1978).

52

See State v. Marshall, 859 S.W.2d at 292-94; Cumberland Capital Corp. v. Patty, 556

S.W.2d 516, 519 (Tenn. 1977); Stoots v. State, 205 Tenn. 59, 69, 325 S.W.2d 532, 536 (1959).

-31-

Tennessee protects a woman’s right of procreational autonomy which includes both

the right to procreate and the right to avoid procreation. See Davis v. Davis, 842

S.W.2d at 601. As fashioned by the court, the right of procreational autonomy is not

absolute but is tempered by the State’s interest in protecting life after the end of the

first trimester of pregnancy. See Davis v. Davis, 842 S.W.2d at 602.

The lineage of the right of procreational autonomy protected by the

Constitution of Tennessee parallels that of a woman’s right to decide whether to

terminate her pregnancy recognized in Roe v. Wade. The right of procreational

autonomy derives from an individual’s right of privacy, see Davis v. Davis, 842

S.W.2d at 600, which is inherent in the concept of liberty embedded in the

Constitution of Tennessee. See Davis v. Davis, 842 S.W.2d at 598-99. The concept

of liberty is not confined to a specific provision but rather is implicit in Tenn. Const.

art. I, § 8 and the “liberty clauses” in the Declaration of Rights. See Davis v. Davis,

842 S.W.2d at 599-600.53

The Tennessee Supreme Court never held in Davis v. Davis that the scope of

the right of privacy protected by the Constitution of Tennessee was broader than the

right of privacy protected by the United States Constitution. While the court

observed that there is no reason to assume complete congruity between the two rights,

see Davis v. Davis, 842 S.W.2d at 600, it did not conclude that the boundaries

between the two rights are, in fact, different. In fact, the court intimated that the state

and federal rights are similar when it noted that “the right of procreation is a vital part

of an individual’s right to privacy. Federal law is to the same effect.” Davis v. Davis,

842 S.W.2d at 600. The court also relied exclusively on decisions of the United

States Supreme Court construing the United States Constitution to describe the nature

and scope of the right of procreational autonomy. See Davis v. Davis, 842 S.W.2d

at 600-02.

53

The court’s discussion of the liberty clauses centered on Tenn. Const. art. §§ 1, 2, 3, 7, 19,

and 27. Referring to Tenn. Const. art. I, §§ 1 and 2, the court observed that the Constitution of

Tennessee is the only state constitution that gives the people the right to resist governmental

oppression even to the extent of overthrowing the government. See Davis v. Davis, 842 S.W.2d at

599. In fact, Tenn. Const. art. I, §§ 1 and 2 were derived from Md. Dec. of Rights of 1776, art. IV

and N.H. Const. of 1784, pt. I, art. X and are not unique. Currently, the constitutions of thirty-one

states contain provisions securing the political rights of the people. See, e.g., Ala. Const., art. I, §

2; Ga. Const., art. I, § 2, ¶ 2; Ky. Const., Bill of Rights § 4; Mass. Const., Dec. of Rights, art. VII;

N.C. Const., art. I, § 2; Va. Const., art. I, § 3. Two other state constitutions contain provisions

similar to Tenn. Const. art. I, § 2. See Md. Const., Dec. of Rights, art. 6; N.H. Const., pt. I, art. 10.

-32-

While the Tennessee Supreme Court has invoked the right of privacy since

deciding Davis v. Davis,54 it has not again addressed the scope of either the right of

privacy or the right of procreational autonomy. The only reported case addressing

the scope of the right of privacy involved a challenge to the Homosexual Practices

Act, Tenn. Code Ann. § 39-13-510 (1991). In that case, a panel of this court held that

the statute was unconstitutional because it was not narrowly tailored to advance the

State’s interest in preventing the spread of infectious diseases. See Campbell v.

Sundquist, 926 S.W.2d 250, 263-64 (Tenn. Ct. App. 1996). The panel also observed

that “the right to privacy provided to Tennesseans under our Constitution is in fact

more extensive than the corresponding right to privacy provided by the Federal

Constitution.” Campbell v. Sundquist, 926 S.W.2d at 261.

We do not on this occasion take issue with our colleagues’ conclusion in

Campbell v. Sundquist. However, we do not view their observation concerning the

scope of Tennessee’s right of privacy to be controlling in this case for four reasons.

First, their reliance on Davis v. Davis for the proposition that the scope of the state

right of privacy is broader than the scope of the federal right of privacy is misplaced.

Davis v. Davis never held that the contours of the two rights differ, and the Tennessee

Supreme Court’s analysis based on the uniqueness of the liberty clauses in the

Constitution of Tennessee is historically inaccurate.55 Second, other than its reliance

on the historically incorrect language in Davis v. Davis, the Court of Appeals cited

no other law to support its understanding of the scope of the right of privacy. Third,

the Campbell v. Sundquist decision did not deal specifically with the right of

procreational autonomy. Finally, the fact that the Tennessee Supreme Court denied

permission to appeal in Campbell v. Sundquist is not a reliable indication that the

court concurs with the conclusion with regard to the scope of Tennessee’s right of

privacy. See Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993); Swift v. Kirby,

737 S.W.2d 271, 277 (Tenn. 1987); Street v. Calvert, 541 S.W.2d 576, 587 (Tenn.

1976).

54

See Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717-18 (Tenn. 1997); In re Adoption of

Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Nale v. Robertson, 871 S.W.2d 674, 680

(Tenn. 1994); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).

55

See supra note 53.

-33-

Accordingly, we must determine whether the scope of the right of procreational

autonomy is broader than the analogous right of reproductive freedom protected by

the United States Constitution. The Tennessee Supreme Court has already noted that

these rights spring from common constitutional roots -- the concept of liberty

reflected in the state and federal constitutions. See Davis v. Davis, 842 S.W.2d at

598. In order to conclude that Tennessee’s right to procreational autonomy is broader

than its federal counterpart, we must point to material differences in the applicable

constitutional language or to other historical or precedential matters that warrant this

conclusion. See City of White House v. Whitley, 1997 WL 331743, at *13 (Koch, J.,

dissenting).

The parties challenging the constitutionality of Tenn. Code Ann. §§ 39-15-201,

-202 have the burden of demonstrating that the right of procreational autonomy

differs in scope and application from the constitutionally protected liberty interests

recognized in Roe v. Wade. They have failed to carry their burden because even the

most expansive reading of Davis v. Davis does not substantiate their claim. Both the

Constitution of Tennessee and the United States Constitution embody ancient

principles that shield private rights from arbitrary governmental interference. See

State v. Staten, 46 Tenn. (6 Cold.) 233, 245 (1869). In light of the common

constitutional lineage of these two rights, and in the absence of any demonstrable

basis for a contrary conclusion, we decline to hold that the right of procreational

autonomy recognized in Davis v. Davis differs in any material way from the

fundamental right of a woman to decide whether to terminate her pregnancy first

recognized in Roe v. Wade.

C.

Having determined that the state right of procreational autonomy does not

differ materially from the procreational right recognized in Roe v. Wade, we must

now identify the standards to be used to test the validity of the statutory provisions

challenged in this case. The formulation of clear legal standards in cases of this sort

is essential because standards minimize judicial subjectivity as well as the risk that

the height of the bar will be determined by the apparent exigencies of the day. See

Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 785,

-34-

116 S. Ct. 2374, 2406 (1996) (Kennedy, J., concurring in part, concurring in the

judgment in part, and dissenting in part).

The Tennessee Supreme Court has not provided us with standards for deciding

whether a statute adequately balances the State’s interest in protecting maternal health

and potential human life with a woman’s procreational autonomy. It has, however,

pointed to several important similarities between the state and federal rights that point

to a workable standard. Like the United States Supreme Court, the Tennessee

Supreme Court has recognized that women have a constitutionally protected liberty

interest in determining whether to bear or beget a child. See Planned Parenthood v.

Casey, 505 U.S. at 846, 859, 112 S. Ct. at 2804, 2816; Roe v. Wade, 410 U.S. at 153,

93 S. Ct. at 727; Davis v. Davis, 842 S.W.2d at 600-01. But, like the United States

Supreme Court, the Tennessee Supreme Court has also recognized that the woman’s

right is not absolute and that the State’s interest in protecting maternal health and

potential life may justify imposing reasonable limitations on a woman’s exercise of

her right. See Planned Parenthood v. Casey, 505 U.S. at 878-79, 112 S. Ct. at 2821;

Roe v. Wade, 410 U.S. at 162-64, 93 S. Ct. at 731-32; Davis v. Davis, 842 S.W.2d at

602.

In an early effort to strike the appropriate balance between these interests, the

United States Supreme Court held in Roe v. Wade and in several later cases that state

regulations touching on a woman’s abortion decision should be subjected to strict

scrutiny and should be upheld only if they were drawn in narrow terms to further a

compelling state interest. See Roe v. Wade, 410 U.S. at 155-56, 93 S. Ct. at 728.

Using the strict scrutiny test, the United States Supreme Court invalidated statutes

requiring mandatory pre-abortion counseling,56 spousal consent,57 parental consent

for minors,58 waiting periods,59 and hospitalization requirements for abortions

occurring after the first trimester.60

56

See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. at 764,

106 S. Ct. at 2180.

57

See Planned Parenthood v. Danforth, 428 U.S. 52, 69-71, 96 S. Ct. 2831, 2841-42 (1976).

58

See Planned Parenthood v. Danforth, 428 U.S. at 74, 96 S. Ct. at 2843.

59

See City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 449-51, 103 S. Ct. at

2502-03.

60

See Planned Parenthood v. Ashcroft, 462 U.S. 476, 481-82, 103 S. Ct. 2517, 2520 (1983);

(continued...)

-35-

In 1989 the Court signaled its disenchantment with its post-Roe v. Wade

standards when it upheld a statutory restriction against using public employees or

facilities to perform non-therapeutic abortions. See Webster v. Reproductive Health

Servs., 492 U.S. at 509-11, 109 S. Ct. at 3052-53. Four members of the Court,

including Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, noted

that Roe v. Wade’s strict scrutiny standard based on the trimester framework had

proved to be unsound in principle and unworkable in practice. See Webster v.

Reproductive Health Servs., 492 U.S. at 518, 109 S. Ct. 3056; Webster v.

Reproductive Health Servs., 492 U.S. at 532, 109 S. Ct. at 3064 (Scalia, J., concurring

in part and concurring in the judgment). Justice O’Connor stated that she was not

prepared to address the continuing viability of Roe v. Wade in this case. See Webster

v. Reproductive Health Servs., 492 U.S. at 525-26, 109 S. Ct. at 3060-61 (O’Connor.

J., concurring in part and concurring in the judgment).

The occasion for reconsidering the Roe v. Wade standards presented itself in

1992 in a multifaceted challenge to Pennsylvania statutes pertaining to medical

emergencies, informed consent, waiting periods, parental consent, reporting and

record keeping requirements, and spousal notification. The Court upheld all

challenged provisions except the spousal notification requirement, but the justices

prepared five opinions reflecting their lack of consensus concerning the appropriate

standards. Four justices, including three of the justices who had earlier departed from

Roe v. Wade in Webster v. Reproductive Health Servs., sustained all the challenged

provisions on the basis that they were rationally related to a legitimate state interest.

See Planned Parenthood v. Casey, 505 U.S. at 966, 979, 112 S. Ct. at 2867, 2873

(Rehnquist, C.J., concurring in the judgment in part and dissenting in part).

The pivotal opinion was prepared jointly by Justices O’ Connor, Kennedy, and

Souter.61 While retaining the “essential holdings” of Roe v. Wade,62 the three justices

60

(...continued)

City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 437-39, 103 S. Ct. at 2496-97.

61

The joint opinion is the controlling opinion in the case because it embodies the position of

the members of the Court who concurred on the narrowest grounds. See Marks v. United States, 430

U.S. 188, 193, 97 S. Ct. 990, 993 (1977); Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909,

2923 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

62

According to the joint opinion, the three essential holdings of Roe v. Wade were: (1) the

recognition of a woman’s right to choose to have an abortion before viability and to obtain it without

(continued...)

-36-

rejected Roe v. Wade’s rigid trimester framework, see Planned Parenthood v. Casey,

505 U.S. at 873, 112 S. Ct. at 2818, and also rejected the strict scrutiny standard

because it did not give proper weight to the State’s interest in maternal health and in

potential life. See Planned Parenthood v. Casey, 505 U.S. at 875-76, 112 S. Ct. at

2819-20. In the place of the strict scrutiny standard, the joint opinion employed an

“undue burden” standard that it explained as follows:

Only where state regulation imposes an undue burden on

a woman’s ability to make this decision does the power of

the State reach into the heart of the liberty protected by the

Due Process Clause.

Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819. The joint opinion

elaborated on the meaning of an undue burden by pointing out that “[a] finding of an

undue burden is a shorthand for the conclusion that a state regulation has the purpose

or effect of placing a substantial obstacle in the path of a woman seeking an abortion

of a nonviable fetus.” Planned Parenthood v. Casey, 505 U.S. at 877, 112 S. Ct. at

2820.

The joint opinion drew a clear distinction between regulations that placed an

undue burden on a woman’s ability to decide whether to terminate her pregnancy and

those that had the incidental effect of increasing the cost or decreasing the availability

of abortions. The justices pointed out that “the fact that a law which serves a valid

purpose, one not designed to strike at the right itself, has the incidental effect of

making it more difficult or more expensive to procure an abortion cannot be enough

to invalidate it.” Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819.

They also emphasized that

What is at stake is the woman’s right to make the ultimate

decision, not a right to be insulated from all others in doing

so. Regulations 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. . . . Unless

it has that effect on her right of choice, a state measure

designed to persuade her to choose childbirth over abortion

62

(...continued)

undue interference from the state, (2) confirmation of the state’s power to restrict abortions after fetal

viability if the law contains emergency medical exceptions to protect the life and health of the

woman, and (3) recognition that the state has legitimate interests from the onset of pregnancy in

protecting the health of the woman and the life of the fetus that may become a child. See Planned

Parenthood v. Casey, 505 U.S. at 846, 112 S. Ct. at 2804.

-37-

will be upheld if reasonably related to that goal.

Regulations designed to foster the health of a woman

seeking an abortion are valid if they do not constitute an

undue burden.

Planned Parenthood v. Casey, 505 U.S. at 877-78, 112 S. Ct. at 2821.

As employed in the joint opinion, the undue burden standard requires the court

to analyze the factual record to determine whether the challenged regulation, in a

large fraction63 of the cases in which it is relevant, will operate as a substantial

obstacle to a woman’s choice to undergo an abortion. See Planned Parenthood v.

Casey, 505 U.S. at 895, 112 S. Ct. at 2830; see also Women’s Med. Prof’l Corp. v.

Voinovich, 130 F.3d 187, 194 (6th Cir. 1997); Planned Parenthood v. Miller, 63 F.3d

1452, 1457 (8th Cir. 1995); Summit Med. Assocs., P.C. v. James, 984 F. Supp. 1404,

1449 (M.D. Ala. 1998). Thus, the undue burden standard requires a fact-intensive

inquiry based on the record developed in the trial court. See Planned Parenthood v.

Casey, 510 U.S. 1309, 1310, 114 S. Ct. 909, 910-11 (1994) (Souter, J., denying

application for stay); Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014,

113 S. Ct. 1668, 1669 (1993) (O’Connor, J., concurring in denial of stay).

Accordingly, the three justices employing the undue burden standard and the

four justices employing the rational basis standard departed from Akron v. Akron Ctr.

for Reproductive Health, Inc. and upheld Pennsylvania’s 24-hour waiting period. See

Planned Parenthood v. Casey, 505 U.S. at 885-87, 112 S. Ct. at 2825-26. They also

departed from Akron v. Akron Ctr. for Reproductive Health, Inc. and Thornburgh v.

American College of Obstetricians and Gynecologists to uphold Pennsylvania’s

informed consent procedure requiring physicians to provide their patients with state-

prescribed information, some of which was intended to influence the woman’s choice

between abortion and childbirth. See Planned Parenthood v. Casey, 505 U.S. at 881-

85, 112 S. Ct. at 2822-25.

The Court also upheld Pennsylvania’s one-parent consent requirement for

minors seeking abortions because it had an adequate judicial bypass procedure. See

63

Three justices continue to insist that facial challenges to abortion statutes must fail unless

there exists no set of circumstances in which the statute can be constitutionally applied. See Janklow

v. Planned Parenthood, 517 U.S. 1174, ___, 116 S. Ct. 1582, 1584-85 (1996) (Scalia, J., dissenting

from the denial of certiorari); Ada v. Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011,

1011-12, 113 S. Ct. 633, 633-34 (1992) (Scalia, J., dissenting from the denial of certiorari).

-38-

Planned Parenthood v. Casey, 505 U.S. at 899-900, 112 S. Ct. at 2832. In addition,

the Court upheld Pennsylvania’s medical emergency exception, see Planned

Parenthood v. Casey, 505 U.S. at 879-80, 112 S. Ct. at 2822, as well as the reporting

and record keeping requirement. See Planned Parenthood v. Casey, 505 U.S. at 900-

01, 112 S. Ct. at 2832-33. In a closely divided vote, the Court found that the spousal

notification requirement unduly burdened married women seeking abortions who do

not wish to notify their husbands and who do not qualify for one of the statutory

exemptions to the notice requirement. See Planned Parenthood v. Casey, 505 U.S.

at 887-98, 112 S. Ct. at 2826-31.

The United States Supreme Court’s “reproductive rights” decisions are not

binding on this court in this case because the challenge to Tenn. Code Ann. §§ 39-15-

201, -202 is based on the Constitution of Tennessee. They can, however, provide

helpful guidance for our decision. See Wright v. Cunningham, 115 Tenn. 445, 463-

64, 91 S.W. 293, 297 (1905). In the absence of a demonstrable basis for holding

otherwise, we should favor a construction of the Constitution of Tennessee that is

harmonious with analogous provisions in the United States Constitution. See State

v. Jones, 598 S.W.2d 209, 219 (Tenn. 1980) overruled on other grounds by State v.

Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993); Miller v. State, 584

S.W.2d 758, 763 (Tenn. 1979) (Harbison, J., dissenting).

The Planned Parenthood plaintiffs have failed to present colorable arguments

that Planned Parenthood v. Casey’s undue burden standard is inconsistent with the

right of procreational privacy recognized in Davis v. Davis. They have not pointed

to textual differences or historical or precedential factors that require the continued

use of Roe v. Wade’s strict scrutiny standard. We have considered this issue in light

of Davis v. Davis and the historical background surrounding the drafting and

adoption of Tennessee’s Bill of Rights, and we find that Planned Parenthood v.

Casey’s undue burden standard appropriately balances a woman’s right to

procreational autonomy with the State’s significant interest in protecting maternal

health and potential human life. Accordingly, we will use the undue burden standard

to determine whether the provisions challenged in this case pass muster under the

Constitution of Tennessee.

-39-

Except for certain circumstances not applicable here, the persons challenging

a statute have the burden of demonstrating its unconstitutionality. See Hart v. City

of Johnson City, 801 S.W.2d 512, 516 (Tenn. 1990); Fritts v. Wallace, 723 S.W.2d

948, 950 (Tenn. 1987). This principle applies to constitutional challenges to abortion

statutes. See Katherine Kolbert & David H. Gans, Responding to Planned

Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law,

66 Temple L. Rev. 1151, 1155 (1993). Thus, in order to prevail, those challenging

the statutory regulations of a woman’s right of procreational autonomy must prove

either that the General Assembly’s purpose in enacting the regulation was to interfere

substantially with a woman’s choice or that the regulation has interposed a substantial

obstacle in the path of a woman seeking an abortion before the fetus attains viability.

See Planned Parenthood v. Casey, 505 U.S. at 878, 112 S. Ct. at 2821.

V.

We will now consider the constitutionality of the separate statutory provisions

at issue in this case. The relative sparsity of probative evidence concerning the effect

of these provisions has not escaped our notice. We find the lack of evidence

somewhat discomfiting in light of both the profound importance of the issues

presented and the United States Supreme Court’s unmistakably clear direction in

Planned Parenthood v. Casey that the undue burden standard requires a thoughtful,

fact-intensive analysis of the effect of the challenged provisions on women’s

procreational autonomy.

A.

Tenn. Code Ann. §§ 39-15-201, -202 have state-wide application. According

to the most current data in the record,64 abortions are currently being performed in

nine of Tennessee’s ninety-five counties. Over 90% of these abortions are performed

in the State’s five most populous areas.65 Despite this geographic concentration,

virtually all of the evidence presented to the trial court relates to abortions performed

in Nashville and the operation of the Planned Parenthood clinic in Nashville. While

64

See Division of Information Resources, Tennessee Dep’t of Health, Report of Induced

Abortions in Tennessee 1990 (June 1992).

65

Chattanooga, Knoxville, Nashville, Memphis, and the Tri-Cities.

-40-

there is some evidence about the operation of the Planned Parenthood clinic in

Memphis, the record contains little evidence concerning the availability of abortions

in Memphis and no current evidence of any sort concerning the circumstances in

Chattanooga, Knoxville, or the Tri-Cities.

To the extent that the statewide statistical data for 1990 remains reliable, 90%

of the abortions performed in Tennessee are performed during the first twelve weeks

of pregnancy. Approximately 6% are performed during the thirteenth and fourteenth

weeks of pregnancy, and only 3.9% of the abortions are performed after the

fourteenth week of pregnancy. The statewide data also indicates that 87% of the

abortions obtained by Tennessee residents are performed either in a physician’s office

or in a licensed ambulatory surgical treatment center.66 Only 2.2% of all abortions

are performed in hospitals; however, over 81% of all abortions performed during or

after the seventeenth of pregnancy are performed in hospitals.

The data also reveals that a majority of the women who obtain abortions

(63.3%) are Caucasian. Approximately 80% of the women are unmarried, and

approximately 36% have had a previous abortion. The median age of women

obtaining an abortion is twenty-three years old. Approximately 25% of the women

are nineteen years old or younger, while 33.9% are between the ages of twenty and

twenty-four.

B.

The Planned Parenthood plaintiffs first assert that the abortion regulations in

Tenn. Code Ann. §§ 39-15-201, -202 violate Tenn. Const. art. I, § 8 and Tenn. Const.

art. XI, § 8 because they subject women seeking abortions to burdens and obstacles

not faced by women seeking other types of medical treatment. Since the right of

procreational autonomy is a fundamental right, they argue that the challenged

regulations must be strictly scrutinized and that they should be upheld only if they are

precisely tailored to serve a compelling governmental interest. The State responds

that heightened scrutiny is not required and that Tenn. Code Ann. §§ 39-15-201, -202

66

The Planned Parenthood clinics in Memphis and Nashville are licensed as ambulatory

surgical treatment centers.

-41-

will withstand an equal protection challenge if there is any reasonably conceivable

set of facts that could provide a rational basis for the restriction.

The Equal Protection Clauses of the Constitution of Tennessee require that all

persons or entities be treated the same under like circumstances and conditions. See

Genesco, Inc. v. Woods, 578 S.W.2d 639, 641 (Tenn. 1979); Mascari v. International

Brotherhood of Teamsters, 187 Tenn. 345, 350, 215 S.W.2d 779, 781 (1948). They

do not require persons or things that are, in fact, different to be treated the same. See

Riggs v. Burson, 941 S.W.2d at 52. The initial burden of determining what is

“different” and what is “the same” with regard to statutory classifications resides with

the General Assembly. See State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905,

912 (Tenn. 1996). Any classification that is constitutionally suspect or that interferes

with a fundamental constitutional right will be subjected to strict scrutiny, see State

v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994); Harrison v. Schrader, 569 S.W.2d 822,

825 (Tenn. 1978), and will be upheld only if it is precisely tailored to serve a

compelling governmental interest. See Doe v. Norris, 751 S.W.2d 834, 842 (Tenn.

1988).

Pregnancy, as a medical condition, provides a natural, appropriate basis for

classifying women with regard to the provision of medical services. Pregnant women

are distinctly different from other women seeking reproductive or any other type of

healthcare. Their pregnancy places additional demands on their bodies, and treatment

decisions can affect not only their life and health but also the life and health of the

fetus. Because of the dual effect of decisions regarding the treatment of pregnant

women, the State has a constitutionally significant interest not only in protecting the

mother’s life and health but also in the fetus’s potential human life. See Planned

Parenthood v. Casey, 505 U.S. at 846, 112 S. Ct. at 2804; Planned Parenthood v.

Casey, 505 U.S. at 914-15, 112 S. Ct. at 2840 (Stevens, J., concurring in part and

dissenting in part); Planned Parenthood v. Casey, 505 U.S. at 929-30, 112 S. Ct. at

2847 (Blackmun, J., concurring in part, concurring in the judgment in part, and

dissenting in part); Planned Parenthood v. Casey, 505 U.S. at 945-46, 112 S. Ct. at

2856 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part); Roe

v. Wade, 410 U.S. at 162, 93 S. Ct. at 731; Davis v. Davis, 842 S.W.2d at 601-02.

-42-

Thus, even if a woman’s right of procreational autonomy is fundamental for

the purposes of an equal protection analysis, the State’s interest in maternal health

and potential life justifies appropriate state intervention. In equal protection parlance,

this intervention must be precisely tailored. In the context of statutory regulations of

abortions, the courts should determine whether a particular regulation is precisely

tailored using the undue burden standard set out in Planned Parenthood v. Casey.

Thus, a statutory regulation of abortion will withstand equal protection analysis if it

does not impose a substantial obstacle in the path of a woman seeking an abortion

before the fetus attains viability.

C.

The Planned Parenthood plaintiffs assert that the hospitalization requirement

in Tenn. Code Ann. § 39-15-201(c)(2) burdens a woman’s right of procreational

autonomy without serving a compelling or even legitimate state interest. They insist

that elective abortions can be performed safely outside a hospital through the

eighteenth week of pregnancy and that the cost of obtaining an abortion in a hospital

is significantly higher that the cost of similar procedures in an outpatient clinic or

free-standing facility. They also insist that the hospitalization requirement is

inconvenient and that hospitals pose additional health risks for women because of the

possibility of nosocomial infection.

Our determination of these issues rests on the language of the statute as enacted

by the General Assembly, not as embellished by the trial court. Thus, the regulation

we are construing at this juncture permits abortions

After three (3) months, but before viability of the

fetus, if the abortion . . . is performed . . . in a hospital as

defined in § 68-11-201, licensed by the state department of

health, or a hospital operated by the State of Tennessee or

a branch of the federal government.

The Planned Parenthood plaintiffs argue that we should review this

requirement using the same strict scrutiny standard used by the United States

Supreme Court to overturn similar requirements in the past.67 They insist that the

67

See City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. at 434-439, 103 S. Ct.

at 2495-97; Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 481-82,

(continued...)

-43-

undue burden standard is inapplicable because the United States Supreme Court did

not specifically depart from its earlier decisions concerning hospitalization

requirements when it decided Planned Parenthood v. Casey. The Casey Court did

not address its prior decisions concerning hospitalization requirements because this

question was not before it. However, the authors of the joint opinion in Casey clearly

envisioned that the undue burden standard should be used to evaluate the

constitutionality of any state regulation affecting a woman’s procreational autonomy.

We have already determined that the undue burden standard strikes the proper

balance between a woman’s right of procreational autonomy and the State’s

important and legitimate interest in protecting maternal health and potential human

life. Accordingly, our task is to review Tenn. Code Ann. § 39-15-201(c)(2) to

determine whether its hospitalization requirement places a substantial obstacle in the

path of women seeking an abortion before fetal viability.

The undue burden standard requires us to consider both the purpose and the

effects of the hospitalization requirement. See Planned Parenthood v. Casey, 505

U.S. at 877, 112 S. Ct. at 2820. The purpose prong of the standard does not require

us to consider the number of women affected by the provision. Instead, it requires

us to invalidate the requirement if the persons challenging the statute prove that the

General Assembly intended to hinder a woman’s procreational autonomy when it

enacted the requirement. If, however, the requirement serves a valid purpose not

designed to strike at the heart of the right of procreational autonomy, the requirement

should be overturned only if its effect is to place a substantial obstacle in the path of

a significant number of women seeking an abortion before fetal viability.

The record contains no direct evidence that the General Assembly enacted the

hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2) to frustrate a

woman’s exercise of her procreational choice. To the contrary, the evidence

illustrates the General Assembly’s genuine desire to protect the health of women who

seek abortions. Since protecting maternal health is a legitimate and important state

interest, see Planned Parenthood v. Casey, 505 U.S. at 877-78, 112 S. Ct. at 2821, we

find that the evidence does not support a finding of improper legislative motivation.

67

(...continued)

103 S. Ct. 2517, 2520 (1983).

-44-

In the absence of direct evidence of improper legislative motive, the Planned

Parenthood plaintiffs argue that an improper motive may be deduced from the facts

that few Tennessee hospitals provide elective abortions after the first fourteen weeks

of pregnancy and that the medical community believes that abortions through the first

eighteen weeks of pregnancy can be performed safely outside of hospitals. The

evidence with regard to the availability issue is meager. What evidence there is

relates only to the practice of hospitals in Nashville. There is no evidence concerning

hospital policies with regard to post-fourteen week abortions in Memphis,

Chattanooga, Knoxville, the Tri-Cities, Cookeville, or Jackson. With regard to

Nashville, the evidence shows that between two and four hospitals permit elective

post-fourteen week abortions. The evidence also shows that hospital policies

regarding post-fourteen week abortions are driven by the risk of complications of

these procedures and the shortage of trained physicians willing to perform them, not

by Tenn. Code Ann. §§ 39-15-201, -202.

In light of the improvements in medical equipment and procedures during the

past twenty-five years, the medical community has reached a consensus that abortions

can be performed safely in physicians’ offices and outpatient clinics through the

fourteenth week of pregnancy.68 Physicians have also agreed that abortions through

the eighteenth week of pregnancy may be performed safely in a free-standing surgical

facility.69 The procedures performed in these facilities may be under general or

regional block anesthetic, but the recovery period must be short because patients must

be able to be discharged on the same day the procedure is performed.70 These

facilities must maintain the same surgical, anesthetic, and personnel standards that

are required of hospitals, including: (a) control of the sources and transmission of

infection, (b) infection surveillance, (c) functional oxygen and suction, (d)

resuscitation and defibrillation (e) emergency lighting, (f) sterilization, and (g)

emergency intercommunication.71

68

See ACOG Standards at 65-66.

69

See ACOG Standards at 68. The medical community has also concluded that abortions can

be provided even later in ambulatory surgical facilities attached to hospitals because of the

availability of surgical, recovery, and emergency response facilities.

70

See ACOG Standards at 66.

71

See ACOG Standards at 74.

-45-

The evidence concerning the adequacy of the facilities in Tennessee where

outpatient abortions are performed is sketchy. Outside of the evidence with regard

to the Planned Parenthood clinics in Memphis and Nashville, it is nonexistent. The

Planned Parenthood clinics in Memphis and Nashville are licensed as ambulatory

surgical treatment centers under Tenn. Code Ann. § 68-11-102(4)(A), but neither

facility meets the ACOG Standards for performing post-fourteen week abortions.72

Because ambulatory surgical centers are of relatively recent vintage, the

Planned Parenthood plaintiffs do not seriously argue that the General Assembly erred

in 1973 when it decided that post-fourteen week abortions must be performed in

hospitals. They argue instead that the hospitalization requirement has become

outdated. Since it is no longer medically necessary to perform abortions through the

eighteenth week of pregnancy in a hospital, they ascribe improper motives to the

General Assembly for failing to update Tenn. Code Ann. § 39-15-201(c)(2) to make

it consistent with current medical thinking.

Courts must be cautious about reading too much into legislative inaction. See

Johnson v. Transportation Agency, 480 U.S. 616, 671-72, 107 S. Ct. 1442, 1472

(1987) (Scalia, J., dissenting); Evans v. Steelman, No. 01A01-9511-JV-00508, 1996

WL 557844 at *10 n.14 (Tenn. Ct. App. Oct. 2, 1996) (Koch, J., dissenting), aff’d on

other grounds, ___ S.W.2d ___ (Tenn. 1998).73 The record contains no indication

that the General Assembly has declined or even has been requested to reconcile Tenn.

Code Ann. § 39-15-201(c)(2) with the current ACOG Standards. Accordingly, we

decline to read any sort of improper motive into the General Assembly’s actions or

inactions regarding the hospitalization requirement. Under the facts of this case, the

arguments concerning updating the hospitalization requirement do not raise a

constitutional issue but rather a policy issue that should be addressed to the General

Assembly. Based on the evidence before us, we decline to find improper legislative

motivation for the hospitalization requirement in Tenn. Code Ann. § 39-15-201(c)(2).

72

As an illustration, one physician who performs abortions at the Planned Parenthood clinic

in Nashville recounted an occasion when he was forced to complete a procedure using a flashlight

when the clinic’s electrical power failed.

73

See Evans v. Steelman, No. 01S01-9701-JV-00019, 1998 WL 325224 (Tenn. Mar. 30,

1998).

-46-

The lack of evidence of improper legislative purpose does not end the inquiry.

The hospitalization requirement must be invalidated if it has the effect of placing a

substantial burden in the path of a woman seeking an abortion before fetal viability.

The effect prong of the undue burden analysis requires us to focus on only those

women for whom the requirement is actually a restriction. See Planned Parenthood

v. Casey, 505 U.S. at 894, 112 S. Ct. at 2829. The group of women in Tennessee

affected by the hospitalization requirement is quite limited.

Since 96% of all abortions performed in Tennessee are performed before or

during the fourteenth week of pregnancy, the hospitalization requirement affects only

4% of the abortions performed in Tennessee. Of these abortions, the requirement

does not impose an undue burden on women (a) who are more than eighteen weeks

pregnant, (b) who elect to obtain their abortions outside of Tennessee for reasons of

confidentiality or other similar reasons, and (c) whose medical condition otherwise

requires hospitalization. While the evidence on these matters is sketchy, it appears

that, at most, the hospitalization requirement could become a substantial obstacle for

approximately 2% of the women seeking abortions in Tennessee - that is those

women who are between fourteen and eighteen weeks pregnant who seek elective

abortions and who, either by choice or necessity, decide to obtain their abortion in

Tennessee.

The Planned Parenthood plaintiffs assert that the hospitalization requirement

substantially burdens these women’s procreational autonomy in three ways: (1)

significantly increased cost, (2) additional delay and inconvenience, and (3) increased

risk of complications. The fact that a regulation makes it more difficult or expensive

for a woman to obtain an abortion is not enough to invalidate the regulation. See

Planned Parenthood v. Casey, 505 U.S. at 874, 112 S. Ct. at 2819. Thus,

inconvenience, even significant inconvenience, is not a substantial obstacle under the

undue burden analysis. In order to constitute an undue burden, the regulation must

be likely to prevent women from obtaining abortions. See Karlin v. Foust, 975 F.

Supp. 1177, 1205 (W.D. Wis. 1997). Under the facts before us, we decline to find

that the hospitalization requirement will likely prevent women desiring an elective

abortion from obtaining one.

-47-

The record contains clear evidence that the average cost of abortions performed

in hospitals is substantially higher than the cost of abortions performed in a

physician’s office or outpatient clinic.74 Increased cost alone, however, is not an

undue burden. Women can avoid these costs by obtaining their elective abortions

during or prior to their fourteenth week of pregnancy. If they do so, they avoid the

hospitalization requirement completely because they will be able to obtain the

procedure at a physician’s office or clinic.

The Planned Parenthood plaintiffs also argue that the hospitalization

requirement imposes an undue burden because it increases inconvenience and causes

delay. The record contains little probative evidence on this point. There is some

evidence that women in Tennessee are presently traveling an average of fifty miles

to obtain an elective abortion, and there is no evidence that they will be required to

travel any further if they must obtain their elective abortion in a hospital. As with the

cost issue, women can avoid this additional delay and inconvenience by obtaining

their abortion during or before their fourteenth week of pregnancy.

In their final assault on the hospitalization requirement, the Planned

Parenthood plaintiffs argue that hospitals may be less appropriate than physician’s

offices or outpatient clinics for performing abortions because (a) hospital staffs might

be less supportive of women seeking elective abortions, (b) hospitals have a higher

risk of nosocomial infection, and (c) hospitals present a greater risk for breaches of

confidentiality. Again, the record contains little, if any, evidence to support these

assertions other than the fears of the persons challenging the hospitalization

requirement. The record before us does not contain sufficient evidence for us to

conclude that hospital personnel will provide substandard care to women seeking

elective abortions or that they will violate the strict confidentiality standards imposed

on hospitals by state and federal law. Likewise, there is no objective evidence

supporting the claim that women run a greater risk of nosocomial infection if they

obtain an abortion in a hospital as opposed to a physician’s office or outpatient clinic.

74

This comparison is based on the cost of abortions performed during the first fourteen weeks

of pregnancy. We have no similar comparison of costs for abortions performed after the first

fourteen weeks because outpatient clinics are not presently performing these procedures. For the

purpose of our analysis, we will presume that there are similar differences in the cost of post-

fourteen week abortions. The cost difference is most likely not as great because the clinics would

pass on to their patients most, if not all, of the increased operating expenses incurred to comply with

the ACOG Standards.

-48-

In light of the present record, we find that the infection control standards imposed on

hospitals by governmental regulations and accrediting agencies are sufficient to

protect the health of women who are hospitalized when they obtain their abortions.

The American Medical Association has concluded that abortions are safest

when they are performed early in a pregnancy by a well-trained physician working

in a facility equipped to manage any complications that might arise.75 Because of the

absence of evidence that the hospitalization requirement in Tenn. Code Ann. § 39-15-

201(c)(2) has the purpose or effect of placing a substantial obstacle in the path of

women seeking an elective abortion, we conclude that the hospitalization requirement

does not place an undue burden on women’s procreational autonomy.

D.

The Planned Parenthood plaintiffs have also mounted a multifaceted attack on

the informed consent requirements in Tenn. Code Ann. § 39-15-202(b), (c). First,

they take issue with the requirement in Tenn. Code Ann. § 39-15-202(b) that a

woman be “orally informed [of the required information] by her attending physician.”

Second, they assert that the information required to be provided by Tenn. Code Ann.

§ 39-15-202(b)(3), -202(b)(5), and -202(b)(6) and -202(c) is biased, inaccurate, and

misleading76 and that requiring that this information be provided unduly burdens

women’s procreational autonomy. As with our consideration of the hospitalization

requirement in Tenn. Code Ann. § 39-15-201(c)(2), we will construe the challenged

provisions of Tenn. Code Ann. § 39-15-202(b), -202(c) as they were enacted by the

General Assembly and as we construed them in Section III(C) of this opinion.

75

American Medical Ass’n, Council on Scientific Affairs, “Induced Termination of

Pregnancy Before and After Roe v. Wade: Trends in Mortality and Morbidity in Women,” at 16

(May 1992).

76

The State has not appealed from the trial court’s decision that the information required by

Tenn. Code Ann. § 39-15-202(b)(4) is misleading. Accordingly, the validity of this provision is not

before us.

-49-

1.

TENN. CODE ANN. § 39-15-201(b)

We turn first to the requirement that physicians must personally provide their

patients with the information required by Tenn. Code Ann. § 39-15-202(b), -202(c).

Despite the United States Supreme Court’s approval of this procedure, see Mazurek

v. Armstrong, 520 U.S. 968, ___, 117 S. Ct. 1865, 1866 (1997); Planned Parenthood

v. Casey, 505 U.S. at 883-885, 112 S. Ct. at 2824-25, the Planned Parenthood

plaintiffs assert that it places an undue burden on procreational autonomy and that it

infringes on a physician’s freedoms of conscience and speech protected by Tenn.

Const. art. I, § § 3 and 19. We will consider the physician’s rights first.

The United States Supreme Court has recognized that similar requirements

implicate a physician’s First Amendment rights but has found that they are also part

of a State’s legitimate prerogative to regulate the practice of medicine. See Planned

Parenthood v. Casey, 505 U.S. at 884, 112 S. Ct. at 2824. This reasoning is equally

applicable to a physician’s free speech rights protected by Tenn. Const. art. I, § 19.

In some circumstances the protection afforded by Tenn. Const. art. I, § 19 may be

broader than those of the First Amendment, see Leech v. American Booksellers Ass’n,

Inc., 582 S.W.2d 738, 745 (Tenn. 1979) (holding that the scope of Tenn. Const. art.

I, § 19's protection of speech is at least as broad as that afforded by the First

Amendment). However, the parties challenging Tenn. Code Ann. § 39-15-202(b)

have failed to point out any difference in the wording of Tenn. Const. art. I, § 19 or

in its history of construction that might support a broader construction in cases of this

sort than the United States Supreme Court gave the First Amendment in Planned

Parenthood v. Casey.

The connection between Tenn. Code Ann. § 39-15-202(b), (c) and a

physician’s freedom of conscience protected by Tenn. Const. art. I, § 3 is tenuous at

best. The Constitution of Tennessee insulates from governmental control an

individual’s freedom to believe whatever he or she wishes, but it does not similarly

insulate actions or conduct based on those beliefs. See State ex rel. Swann v. Pack,

527 S.W.2d 99, 111 (Tenn. 1975); Harden v. State, 188 Tenn. 17, 25, 216 S.W.2d

708, 711 (1948); Wolf v. Sundquist, 955 S.W.2d 626, 630-31 (Tenn. Ct. App. 1997).

While states should tread lightly when imposing practice standards on licensed

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professionals, they have the unquestioned authority under their police power to

regulate the conduct of licensees. Requiring physicians to conform their conduct to

prescribed standards does not thereby require physicians to alter their beliefs about

the propriety or efficacy of abortions, nor does it require them to subscribe to ideas

inconsistent with their own beliefs or standards. Accordingly, a requirement such as

the one in Tenn. Code Ann. § 39-15-202(b) will not violate Tenn. Const. art. I, § 3,

as long as it involves truthful, non-misleading information that is not likely to prevent

women from obtain an abortion.

All parties agreed that women seeking an abortion should receive proper

counseling before the procedure. They also agreed that this counseling should

include appropriate information concerning the procedure itself and the possible risks

and complications, as well as information necessary to enable the woman to

understand the consequences of the procedure on herself and the fetus. The parties

differed sharply over who should provide this information to the woman.

The opponents of Tenn. Code Ann. § 39-15-202(b) insist that the required

counseling may be provided by persons other than the physician who will perform

the procedure. In fact, they assert that trained counselors may provide more effective

counseling than physicians because physicians do not receive training as counselors

and may not be as empathetic listeners as counselors. They also point to the policy

statements of both the American College of Obstetrics and Gynecology and the

American Public Health Association that women may receive pre-abortion counseling

from “trained, sympathetic individuals working under appropriate supervision”77 and

that physicians performing abortions “should verify that the counseling has taken

place” if they do not perform the counseling themselves.78

On the other hand, the physicians supporting Tenn. Code Ann. § 39-15-202(b)

insist that the physicians performing the procedure should personally provide their

patients with the counseling and informed consent information. They assert that

persons who are not medically trained should not be permitted to counsel with

patients and that the physician who will actually perform the procedure is best suited

77

American Pub. Health Ass’n, APHA Recommended Program Guide for Abortion Services

(Revised 1979), 70 Am. J. Pub. Health 652, 654 (1980).

78

See ACOG Standards, at 68.

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to explain the benefits and risks of the procedure and the alternative treatments. In

support of their position, these physicians cite the Code of Ethics of the American

Medical Association, which states that one of the fundamental elements of the

relationship between a patient and a physician is that “[p]atients should receive

guidance from the physicians as to the optimal course of action.”79

The opposing views of physicians who testified in this case mirror the

observation of Dr. Terrence Ackerman, the Chairman of the Department of Human

Values and Ethics of the University of Tennessee College of Medicine. Citing the

ACOG Standards,80 Dr. Ackerman stated that physicians have an ethical obligation

to obtain informed consent prior to surgery. He pointed out that the medical

profession, as a general matter, assigns the role of obtaining proper informed consent

to physicians and that physicians have a duty to determine whether they and their

patients are in agreement with the proposed procedure. While Dr. Ackerman stated

that the physician is the person who should obtain the informed consent, he did not

rule out the possibility that circumstances could arise in which the physician could

appropriately delegate this responsibility. He added, however, that delegation is not

the accepted norm and that it should be permitted only when the treating physician

receives an appropriate and relatively full report in order to assure himself or herself

that the patient has been given the opportunity to make an autonomous decision.

The United States Supreme Court has upheld Pennsylvania’s requirement that

physicians, not their assistants, must provide their patients with the required

information. See Planned Parenthood v. Casey, 505 U.S. at 884-85, 112 S. Ct. at

2824-25. With the medical opinions concerning the delegation of this responsibility

79

Council on Ethical & Judicial Affairs, American Medical Ass’n, Code of Medical Ethics,

Court Opinions xi (1992).

80

The ACOG Standards state:

In the event of an unwanted pregnancy, the physician should counsel the

patient about her options: 1) continuing the pregnancy to term and keeping the infant,

2) continuing the pregnancy to term and offering the infant for legal adoption, or 3)

aborting the pregnancy. When feasible, and with the patient’s approval, the

physician should offer this counseling to the patient’s relatives and to her parents (if

she is an adolescent) before this difficult decision is made. If the patient elects

abortion, information about contraception should be offered. When the physician

recommends pregnancy termination for medical or psychological indications,

consultation may be appropriate.

ACOG Standards, at 62.

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so evenly divided, we are not prepared to hold that the General Assembly established

this requirement to interfere with a woman’s procreational autonomy.

The Planned Parenthood plaintiffs also argue that the physician counseling

requirement will have the effect of unduly burdening a woman’s procreational choice

because it will force physicians to spend more time with each patient thereby

reducing the time available to them to perform abortions. They view this as a

substantial obstacle because of the limited number of physicians who are willing to

perform abortions. However, the evidence does not provide a direct causal link

between the Planned Parenthood clinics’ recruiting difficulties and Tenn. Code Ann.

§§ 39-15-201, -202. To the contrary, the evidence indicates that the shortage of

physicians willing to perform abortions is caused by (a) the decrease in the number

of medical schools providing training in the procedure, (b) physicians’ personal

decisions not to perform abortions, (c) physicians’ reluctance to take time away from

their regular practice, and (d) physicians’ concern about their relationship with both

their regular patients and their peers.

Enforcing the physician counseling requirement will require physicians

providing abortions in a Planned Parenthood clinic to spend more time with their

patients. Clinic representatives testified that physicians at their facilities spend, on

average, only ten minutes with each patient, including the two to five minutes

required to perform the procedure itself. By contrast, other physicians testified that

they spend from fifteen to thirty minutes counseling their patients before performing

the procedure. In recognition of the importance of proper pre-abortion counseling

and the profound significance of the woman’s decision, we decline to find, on these

facts, that the requirement in Tenn. Code Ann. § 39-15-202(b) that physicians

personally provide the counseling to their patients places a substantial obstacle in the

path of a woman seeking an elective abortion.

2.

TENN. CODE ANN. § 39-15-202(b) & (c)

The Planned Parenthood plaintiffs also take issue with the substance of several

of the statutory informed consent requirements. They argue that mandatory informed

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consent unduly burdens procreational choice because (a) it is biased in favor of

continuing pregnancies to term, (b) it creates unnecessary stress because most women

have already decided to have an abortion by the time they contact Planned

Parenthood, and (c) providing this information in cases where the abortion is

therapeutic rather than elective is inappropriate and cruel.

We need not tarry long with the bias claim. The United States Supreme Court

has already rejected this argument when it held that States could constitutionally

adopt measures designed to persuade women to choose childbirth over abortion. See

Planned Parenthood v. Casey, 505 U.S. at, 877-78 112 S. Ct. at 2821. Decisions

concerning whether to have an abortion have profound and lasting meaning.

Accordingly, the State may take steps to ensure that a woman’s decision is thoughtful

and informed and

may erect rules and regulations designed to encourage her

to know that there are philosophic and social arguments of

great weight that can be brought to bear in favor of

continuing her pregnancy to full term and that there are

procedures and institutions to allow adoption of unwanted

children as well as a certain degree of state assistance if the

mother chooses to raise the child herself.

Planned Parenthood v. Casey, 505 U.S. at 872, 112 S. Ct. at 2818.

The claim that state-mandated counseling increases stress for women who have

already decided to have an abortion is equally without merit because the State has a

significant interest in making sure that a woman’s decision to have an abortion is

autonomous, informed, and well-considered. The Planned Parenthood plaintiffs

assert that virtually all women have already decided to obtain an abortion before they

contact one of their clinics. However, they also concede that only 43% of their

patients are referred to them by a private physician. Thus, it is reasonable to conclude

that approximately one-half of Planned Parenthood’s patients have made their

decision to have an abortion without appropriate medical counseling or advice.

The State has a legitimate interest in establishing a framework to ensure that

a woman’s consideration of her options is commensurate with the importance of her

decision. Thus, as Dr. Ackerman stated, the fact that a woman might have made up

her mind to have an abortion is irrelevant insofar as proper counseling and informed

consent are concerned. The State may take steps to see to it that a woman makes an

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informed, autonomous choice and that she understands not only the nature and the

risks of the procedure but also the other alternatives available to her.

The final challenge to the mandatory counseling is that it is cruel and

unnecessary to provide this information to women who must undergo therapeutic

abortions to protect their health or life. Requiring women facing a medically

necessary abortion to participate in the mandatory counseling required by Tenn. Code

Ann. § 39-15-202(b) & (c) is undoubtedly inappropriate. However, this argument

overlooks the mandatory constitutional requirement that regulations such as Tenn.

Code Ann. § 39-15-202(b) & (c) must be subject to an emergency medical exception

that will enable physicians to bypass any or all of these counseling requirements

when medically necessary. See Planned Parenthood v. Casey, 505 U.S. at 880, 112

S. Ct. at 2822. Tenn. Code Ann. § 39-15-202(h) currently contains such an

emergency medical exception, even though it is constitutionally deficient in its

current form because it fails to include circumstances and conditions that seriously

endanger a woman’s health. However, once brought into compliance with

constitutional standards, this provision will obviate the mandatory counseling

requirement when women require a therapeutic abortion.

3.

TENN. CODE ANN. § 39-15-202(b)(3)

In their first of three challenges to specific statutorily required information, the

Planned Parenthood plaintiffs take issue with Tenn. Code Ann. § 39-15-202(b)(3) that

requires physicians to inform their patients

That if more than twenty-four (24) weeks have

elapsed from the time of conception, her child may be

viable, that is, capable of surviving outside the womb, and

that if such child is prematurely born alive in the course of

the abortion, her attending physician has a legal obligation

to take steps to preserve the life and health of the child.

While they do not take issue with the truthfulness of this information, they assert that

it is irrelevant to the vast majority of women seeking an abortion because these

women obtain their abortions long before the twenty-fourth week of pregnancy. On

the assumption that providing truthful yet irrelevant information can unduly burden

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procreational autonomy,81 we find that the information mandated by Tenn. Code Ann.

§ 39-15-202(b)(3) is relevant to all women considering whether to have an elective

abortion.

Ninety percent of the abortions performed in Tennessee are performed during

the first twelve weeks of pregnancy. However, the Planned Parenthood plaintiffs

presented evidence that younger women tend to put off making their decision and

thus generally obtain abortions later in their pregnancy. Even though the physicians

differed about the relevance of this information, they did not disagree that abortions

become more risky as a pregnancy advances and that elective abortions cannot be

performed once a fetus becomes viable.

As we interpret the information required in Tenn. Code Ann. § 39-15-

202(b)(3), it is intended to impress on a woman the consequences of waiting too long

before deciding to obtain an abortion. The information is quite relevant to all women

seeking elective abortions because it assists them in making informed, autonomous

decisions. Accordingly, like the trial court, we find that providing women with the

information required by Tenn. Code Ann. § 39-15-202(b)(3) does not unduly burden

their procreational choice.

4.

TENN. CODE ANN. § 39-15-202(b)(5)

The Planned Parenthood plaintiffs also take issue with Tenn. Code Ann. § 39-

15-202(b)(5) that requires physicians to inform their patients

That numerous public and private agencies and

services are available to assist her during her pregnancy

and after the birth of her child, if she chooses not to have

an abortion, whether she wishes to keep the child or place

him [or her] for adoption, and that her physician will

provide her with a list of such agencies and services

available if she so requests.

Earlier in Section III(C)(2) of this opinion, we held that this statute does not require

physicians to know about every public and private organization that could possibly

help a pregnant woman with either medical care or adoption services. Rather, we

81

We need not decide in this case whether providing truthful yet irrelevant information places

an undue burden on procreational choice because the parties have neither raised nor briefed the issue.

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construed the statute to require physicians to provide their patients with information

reasonably known to them.

Even though the United States Supreme Court has explicitly approved

providing women with this sort of information, see Planned Parenthood v. Casey,

505 U.S. at 872, S. Ct. at 2818, the Planned Parenthood plaintiffs insist that it is

inaccurate and misleading because the public and private agencies in Tennessee that

provide medical services, financial support, and adoption services are neither

numerous nor reasonably available to most women. They also insist that providing

this information to women requiring therapeutic abortions would be cruel and

traumatizing, especially if the fetus has profound abnormalities or if the pregnancy

was the result of rape or incest.

In order to determine whether providing women with the information required

by Tenn. Code Ann. § 39-15-202(b)(5) burdens procreational choice, we must first

identify the class of women to which this provision is relevant. It is not relevant to

women who have the financial means to obtain adequate medical care for themselves

and their child. It is likewise not relevant to women who qualify under the

emergency medical exception in Tenn. Code Ann. § 39-15-202(h). Thus, this

provision is most relevant to low income women seeking elective abortions. We

must decide whether this information is inaccurate and whether it will most likely

have the effect of preventing these women from obtaining elective abortions.

The parties challenging the accuracy of the information required by Tenn. Code

Ann. § 39-15-202(b)(5) point to the October 1992 final report of the Committee to

Study Aid To Families With Dependent Children as proof that Tennessee does not

have numerous public and private agencies that provide medical and adoption

services to financially disadvantaged pregnant women and new mothers. This report

demonstrates in convincing terms that Tennessee’s poorest families must struggle for

many of life’s basic necessities and that the State’s AFDC program falls short of

meeting these basic needs. It does not, however, support the Planned Parenthood

plaintiffs’ arguments in this case for two reasons. First, the fact that gaps in AFDC

coverage exist does not necessarily mean that there are not many public and private

agencies in Tennessee providing medical and adoption services to women seeking

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them. Second, the report does not reflect the improvements in the availability of

medical care brought about by the TennCare program.

The opponents of Tenn. Code Ann. § 39-15-202(b)(5) point to the finding in

the AFDC report that thirty-five of Tennessee’s ninety-five counties have no

obstetrician willing to accept Medicaid.82 While this may very well be true, the

Director of Women’s Health of the Tennessee Department of Health testified that all

county health departments provide basic prenatal services with no eligibility

requirements. She also stated that comprehensive prenatal care is available in twenty-

five counties and that the Department has contracted with private physicians for

similar services in other areas. Women residing in counties where no prenatal care

is available may obtain the care in other counties, and according to the Director, it is

quite common for women to gravitate toward service areas where specialty care is

available.

The implementation of the TennCare program has also improved the

availability of prenatal care and medical care for young children. As a result of

TennCare, tens of thousands of children who did not have healthcare coverage in the

past are now insured.83 In addition,

242,264 girls and women ages 14 to 44 - roughly

childbearing age - are now covered and have greater access

to prenatal care.

Many of those now covered by TennCare, but who

were not covered by Medicaid, are lower-income working

people who previously had to self-ration health care

because of their limited financial resources. This could

have lead [sic] to a pregnant woman having little prenatal

care or preventative medical care for the family.

Kids Count, at 10. As a result, Tennessee’s prenatal care indicator has improved from

1990 when 32.3% of all births lacked adequate prenatal care to 1995 when 27.3% of

births lacked adequate prenatal care. See Kids Count, at 11. This improvement

should continue as a result of another TennCare initiative beginning in April 1997

enabling uninsured children under 18 years of age to apply for TennCare coverage.

See Kids Count, at 11.

82

Report of Committee to Study Aid to Families with Dependent Children, at p. 7 (Oct.

1992).

83

See Tennessee Comm’n on Children & Youth, Kids Count, The State of the Child in

Tennessee 1996, at 10 (May 1997) (“Kids Count”).

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In addition to the public services available to pregnant women, the record

contains evidence of a number of private and not-for-profit service providers. The

physicians testifying concerning the availability of services in Nashville identified

four agencies providing these services. One physician observed that two of these

agencies have never failed to provide assistance to patients he has referred to them.

Planned Parenthood of Nashville’s own clinical policies and procedures manual

contains numerous references to both public and private providers who offer basic

medical care, obstetric and gynecologic care, and adoption services.

The Planned Parenthood personnel who testified at trial stated that they collect

this referral information because they believe that part of the informed consent

process is making sure that a woman is informed of her alternatives and because they

desire to provide comprehensive services to their patients. Thus, for women who

decide to continue their pregnancy to term, the Planned Parenthood of Nashville

manual stresses that women who are concerned about monetary needs should be

provided “referrals for subsidized food programs, prenatal care, or even housing and

Medicaid referrals.” For a woman considering adoption, the manual directs that she

be given “counseling and adoption referrals.” The manual also recommends that a

woman considering adoption should be informed that “some couples might reimburse

her for the medical and food bills” and that she should be provided assistance in

seeking “support systems such as parents, relatives, and her church.”

Those testifying both in favor of and in opposition to Tenn. Code Ann. § 39-

15-202(b)(5) agreed that pregnant women considering elective abortions should be

counseled concerning their alternatives. This particular section reflects this

consensus. It does not require physicians to provide their patients with every possible

public or private agency that might help them. Of equal importance, it does not

require physicians to inform their patients that deciding to continue their pregnancy

to term will be easy or without risk. Nor does it require physicians to leave their

patients with the erroneous impression that the care and services that they and their

babies will require are convenient or readily available simply for the asking. All that

Tenn. Code Ann. § 39-15-202(b)(5) requires physicians to do is to provide their

patients, if requested, with truthful, accurate information concerning public and

private agencies that might be able to provide them with assistance should they

decided to carry their pregnancy to term. While several physicians viewed this

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requirement as inconvenient, it does not place an undue burden on a woman’s

procreational choice.

5.

TENN. CODE ANN. § 39-15-202(b)(6) & -202(c)

The final challenged informed consent provisions require that women

considering an abortion should be told that

Numerous benefits and risks are attendant either to

continued pregnancy and childbirth or to abortion

depending upon the circumstances in which the patient

might find herself. The physician shall explain these

benefits and risks to the best of his [or her] ability and

knowledge of the circumstances involved.

Tenn. Code Ann. § 39-15-202(b)(6) and that

At the same time the attending physician provides

the information required by subsection (b), he [or she] shall

inform the pregnant woman of the particular risks

associated with her pregnancy and childbirth and the

abortion or child delivery technique to be employed,

including providing her with at least a general description

of the medical instructions to be followed subsequent to

the abortion or childbirth in order to ensure her safe

recovery.

Tenn. Code Ann. § 39-15-202(c). The Planned Parenthood plaintiffs take issue with

these provisions because (a) it is not clear what additional information Tenn. Code

Ann. § 39-15-202(c) requires that is not already required by Tenn. Code Ann. § 39-

15-202(b)(6), (b) physicians are not able to predict at the early stages of a pregnancy

which childbirth technique might eventually be employed, (c) the information

concerning delivery techniques and postpartum care is irrelevant to women seeking

an abortion, and (d) it is impossible to know in advance what specific benefits a

woman will derive from carrying her pregnancy to term.

Tenn. Code Ann. § 39-15-202(b)(6) & -202(c) are not models of clear

legislative drafting. In this circumstance, our task is to make sense rather than

nonsense out of their terms. See McCellan v. Board of Regents, 921 S.W.2d at 689.

We must discover and give the fullest possible effect to the General Assembly’s

purpose, see Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997), without

unduly restricting the statute or expanding it beyond its intended scope. See Hicks

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v. State, 945 S.W.2d at 707; Riggs v. Burson, 941 S.W.2d at 54. In doing so, we must

ascribe the words in the statute their natural and ordinary meaning, see Davis v.

Reagan, 951 S.W.2d 766, 768 (Tenn. 1997), and we must also consider the words in

the context of the entire statute. See Kultura, Inc. v. Southern Leasing Corp., 923

S.W.2d 536, 539 (Tenn. 1996).

These two provisions overlap significantly. When read together in light of the

General Assembly’s purpose to ensure that women make fully informed, autonomous

decisions about whether to obtain an abortion, we find that they require physicians

to provide their patients the following information:

(1) that there are numerous risks and benefits attendant to having an

abortion or carrying a pregnancy to term;

(2) the specific risks associated with eith

This text is long and has been trimmed here. Open the source document for the complete record.