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

> Court of Appeals of Tennessee · August 17, 2004

URL: https://www.frixlaw.com/law-library/cases/1055390

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** August 17, 2004
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge William C. Koch, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1055390

## How later opinions describe it (automated extraction)

- declining to accredit the deputy director’s conclusion that Wisconsin’s 24-hour waiting period operates as a substantial obstacle in a large number of cases
- 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
- finding standing when a clinic director expressed a desire to perform abortions after the first trimester

## Opinion text

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

-2-
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...)

-3-
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)).

-4-
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)).

-5-
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).

-6-
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

-7-
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).

-8-
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)).

-9-
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

-10-
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...)

-11-
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.

-12-
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

-14-
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.

-15-
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.

-21-
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 o

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1055390. Public record. Not legal advice.