After Tennessee voters passed Amendment 1 in 2014, did the state's old abortion-restriction laws automatically come back into effect, and would re-enacted versions survive constitutional challenge?

Plain-English summary

In November 2014, Tennessee voters ratified Amendment 1, adding a new section to Article I of the Tennessee Constitution: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion . . . ."

The amendment was a direct response to Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), in which the Tennessee Supreme Court held that the right to terminate a pregnancy was part of the right to privacy embedded in the Tennessee Constitution's concept of ordered liberty. Sundquist applied strict scrutiny to abortion regulations under the state constitution, a more demanding standard than the federal undue-burden standard in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Under that strict-scrutiny analysis, Sundquist struck down several Tennessee statutes, including:

• The second-trimester hospitalization requirement (§ 39-15-201(c)(2)).
• Physician-only counseling and informed consent provisions (§ 39-15-202(b), (c)).
• A mandatory two-day waiting period (§ 39-15-202(d)).
• Medical-emergency exceptions that protected only "life" and not "health" (§ 39-15-202(g)).

The AG's three answers:

1. Yes, Amendment 1 supersedes the Sundquist holdings that conflict with the amendment. The Tennessee Supreme Court no longer has a state constitutional basis to apply strict scrutiny under the privacy doctrine to abortion regulations.

2. No, there is no longer a Tennessee Constitution fundamental right to abortion requiring strict scrutiny. The federal "undue burden" standard remains the floor for constitutional review.

3. Whether the struck-down statutes would survive constitutional challenge if re-enacted is uncertain. The struck-down provisions remained void (Franks v. State); they would have to be re-enacted to take effect. If re-enacted, they would still have to clear federal Casey "undue burden" review. The Tennessee Supreme Court in Sundquist also analyzed the statutes under the undue burden standard and found them constitutionally infirm even under that lower standard. A future court might apply stare decisis to those undue-burden holdings (Hooker v. Haslam; Bellar v. National Motor Fleets), which would invalidate the re-enacted statutes again. Even if a court reexamined them de novo, undue-burden analysis is fact-intensive and outcome-uncertain. The three courts in Sundquist (trial, court of appeals, supreme court) reached three different undue-burden conclusions on the same statutes.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. In particular, the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization overruled Casey and eliminated the federal undue-burden framework discussed in this opinion.

Common questions

Q: Did Amendment 1 bring the old struck-down statutes back into effect automatically?
A: No. As Franks v. State explains, a statute struck down as unconstitutional is "as inoperative as though it had never been passed." A new constitutional amendment can clear the doctrinal ground for re-enactment but cannot resurrect statutes that have been judicially nullified. The General Assembly had to enact new versions.

Q: What is the "undue burden" standard?
A: From Planned Parenthood v. Casey: "[U]ndue burden is . . . 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." Casey replaced Roe v. Wade's trimester framework with this standard. (As of the date of this opinion. Casey was later overruled by Dobbs in 2022.)

Q: Why does stare decisis matter if the constitutional doctrine changed?
A: The Sundquist court analyzed the same statutes under both strict scrutiny and undue burden. Its undue-burden conclusions could carry stare decisis weight even after Amendment 1 because they did not depend on the strict-scrutiny holding the amendment overrode. Hooker v. Haslam describes the stare decisis doctrine, which is weaker in constitutional cases (Payne v. Tennessee) but still meaningful.

Q: What if the General Assembly enacts new abortion restrictions that differ from the struck-down ones?
A: Each new restriction would be evaluated on its own facts under whatever federal constitutional framework applied at the time. The opinion notes the high outcome uncertainty under undue-burden analysis.

Background and statutory framework

Tennessee's abortion-regulation statutes evolved over decades, with the General Assembly enacting various counseling, waiting period, hospitalization, and parental involvement requirements. The Tennessee Supreme Court's 2000 Sundquist decision was the watershed moment, holding that the state constitution conferred a fundamental privacy-based right to terminate a pregnancy that required strict-scrutiny review. The 2014 Amendment 1 was a multi-year political effort by abortion-restriction advocates to remove that state-constitutional protection.

This opinion mapped the legal landscape immediately after the amendment's ratification. It told the legislature: the state constitutional floor is gone, but the federal Casey floor is still there, and the federal floor is itself uncertain enough that re-enactment outcomes cannot be predicted. The opinion was written before Dobbs (2022), which fundamentally changed the federal landscape.

Citations and references

Constitutional and statutory:

• Tenn. Const. art. I, new section (Amendment No. 1, ratified November 4, 2014)
• Tenn. Code Ann. §§ 39-15-201, 39-15-202 (the Sundquist-struck provisions)

Cases:

• Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000) (Tennessee Supreme Court; strict scrutiny applied)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (U.S. 1992) (U.S. Supreme Court; undue-burden standard)
• Franks v. State, 772 S.W.2d 428 (Tenn. 1989) (Tennessee Supreme Court; unconstitutional statute is void)
• Hooker v. Haslam, 437 S.W.3d 409 (Tenn. 2014) (Tennessee Supreme Court; stare decisis)
• In re Estate of McFarland, 167 S.W.3d 299 (Tenn. 2005) (Tennessee Supreme Court)
• Payne v. Tennessee, 501 U.S. 808 (U.S. 1991) (U.S. Supreme Court; stare decisis in constitutional cases)
• Bellar v. Nat'l Motor Fleets, Inc., 224 Tenn. 63, 450 S.W.2d 312 (Tenn. 1970) (Tennessee Supreme Court)

Subject

Opinion No. 15-13, "Amendment No. 1" to Article I of the Tennessee Constitution, February 6, 2015

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-13.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 6, 2015
Opinion No. 15-13
"Amendment No. 1" to Article I of the Tennessee Constitution

Question 1
Does the recent passage of Amendment No. 1 to Article I of the Tennessee Constitution supersede the 2000 Tennessee Supreme Court decision of Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000)?

Opinion 1
Adoption of Amendment No. 1 supersedes the holdings of the Sundquist decision that are in conflict with the provisions of the constitutional amendment.

Question 2
After the passage of Amendment No. 1, is there in the Tennessee Constitution a fundamental right to abortion requiring a strict scrutiny analysis of any statute affecting abortion?

Opinion 2
No.

Question 3
Would the statutes contained in Tenn. Code Ann. §§ 39-15-201 and 39-15-202 (1997) that were nullified by the Tennessee Supreme Court in Sundquist survive a constitutional challenge if they are re-enacted or re-codified?

Opinion 3
After passage of Amendment No. 1, any statute imposing restrictions upon a woman's right to obtain an abortion must withstand scrutiny under the United States Constitution, including scrutiny under the "undue burden" standard established by the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It is not clear whether the statutory provisions struck down by Sundquist, if reenacted by the General Assembly following adoption of Amendment No. 1, would survive scrutiny under this standard.

ANALYSIS

1-2. In Planned Parenthood v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), the Tennessee Supreme Court ruled that a woman's right to legally terminate her pregnancy is a part of the right to privacy protected by the concept of ordered liberty that is embodied in the Tennessee Constitution. Id. at 11, 15. It determined that, since the right to privacy is a fundamental right, statutes restricting that right must be evaluated under the "strict scrutiny" standard rather than the "undue burden" standard adopted by the United States Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Under the strict scrutiny standard, a restriction upon a woman's right to obtain an abortion will be struck down unless the State meets its burden of showing that the regulation is justified by a compelling state interest and is narrowly tailored to achieve that interest. Id. at 18.

In Sundquist, the Supreme Court struck down the second trimester hospitalization requirement found at Tenn. Code Ann. § 39-15-201(c)(2). Id. at 18-19. It also struck down the provisions of Tenn. Code Ann. § 39-15-202(b), (c), (d) and (g) which set out physician-only counseling (informed consent) requirements, a mandatory two-day waiting period, and medical emergency exceptions that protected only the life, as opposed to the health, of the woman. Id. at 21-22, 24. As a result of these rulings, the challenged statutory provisions were rendered null and void. Franks v. State, 772 S.W.2d 428, 431 (Tenn. 1989).

On November 4, 2014, Tennessee voters approved and ratified proposed Tennessee Constitutional Amendment No. 1. The amendment adds the following new section to Article I of the Tennessee Constitution:

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

Adoption of this amendment to the Tennessee Constitution supersedes the holdings of the Sundquist decision that are in conflict with the provisions of the amendment. As a result, the Tennessee Supreme Court's ruling that a woman's right to terminate her pregnancy is protected by the fundamental right of privacy found in the Tennessee Constitution—a right requiring application of the "strict scrutiny" standard of review—is no longer good law. Furthermore, the Court's Sundquist rulings that struck down statutory provisions under the "strict scrutiny" standard are no longer good law.

3. After passage of Amendment No. 1, any Tennessee statute imposing restrictions upon a woman's right to obtain an abortion must, if challenged, withstand scrutiny under the United States Constitution, including scrutiny under the "undue burden" standard established for facial challenges by the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). "[U]ndue burden is . . . 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." Id. at 877.

In Sundquist, the Tennessee Supreme Court interpreted and construed the requirements of the challenged statutory provisions and concluded that they are constitutionally infirm under the federal undue burden standard—as well as under the strict scrutiny standard. Id. at 19, 22, 24, 25. Accordingly, a court considering a legal challenge to the same reenacted statutory provisions might apply the doctrine of stare decisis and hold that the Supreme Court's prior interpretive rulings and constitutional holdings under the undue burden standard are determinative and controlling. Hooker v. Haslam, 437 S.W.3d 409, 422 (Tenn. 2014) (citing In re Estate of McFarland, 167 S.W.3d 299, 305 (Tenn. 2005)). While the doctrine is less compelling in constitutional cases than in other cases (id., citing Payne v. Tennessee, 501 U.S. 808, 828 (1991)), stare decisis may require adherence to a prior decision construing the words of a statute in a later case involving the same statutory language. See Bellar v. Nat'l Motor Fleets, Inc., 224 Tenn. 63, 450 S.W.2d 312, 314 (1970).

If a court determined not to apply the doctrine of stare decisis, but rather to reexamine the constitutional validity of the reenacted statutes, we cannot predict the outcome of that reexamination with any degree of certainty. There is no binding United States Supreme Court or Sixth Circuit precedent exactly on point, and analysis under the undue burden standard does not lead to any one conclusive result. Indeed, the Tennessee Supreme Court reflected in Sundquist, supra, 38 S.W.3d at 16, "that the undue burden approach is essentially no standard at all, and, in effect, allows judges to impose their own subjective views of the propriety of the legislation in question."

That no reasonably certain prediction may be made as to the outcome of a judicial "undue burden" analysis is powerfully exemplified by the Sundquist litigation itself. The three different courts that examined the challenged statutory provisions in the Sundquist litigation under the undue burden standard reached three differing conclusions as to their federal constitutional validity.

In sum, if the constitutionality of the same statutory provisions struck down by Sundquist is challenged today after passage of Amendment No. 1, those provisions would still have to pass muster under the federal undue burden standard. Judicial review could result in invalidation of the reenacted statutory provisions as a matter of stare decisis. Even if the court did decide to reexamine the constitutionality of the statutory provisions, it is not clear whether they would survive an undue burden analysis under federal law. Judicial review under the undue burden standard could lead to invalidation of some or all of the statutory provisions.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, TN 37243-0205