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Planned Parenthood of Middle Tennessee v. Sundquist9/15/2000
As amended March 26, 2001
This is an appeal from the Circuit Court for Davidson County, which applied an undue burden standard and struck down as unconstitutional the provisions of Tennessee's criminal abortion statutes requiring that physicians inform their patients that "abortion in a considerable number of cases constitutes a major surgical procedure," Tenn. Code Ann. § 39-15-202(b)(4) (1997), and mandating a two-day waiting period requirement, § 39-15-202(d)(1). The trial court upheld the second trimester hospitalization requirement, § 39-15-201(c)(2), the remaining informed consent requirements, § 39-15-202(b)(1)-(3), (b)(5)-(c), and the medical emergency exceptions, § 39-15-202(d)(3), (g). The Court of Appeals reversed the judgment of the trial court in part and affirmed in part. The Court of Appeals upheld the following provisions as not imposing an undue burden: the waiting period requirement, based upon the facts of this case, the second trimester hospitalization requirement, and, except for the "major surgical procedure" provision, the remaining informed consent requirements. We granted application for permission to appeal those issues of first impression. We specifically hold that a woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution. We further hold that the right is inherent in the concept of ordered liberty embodied in our constitution and is therefore fundamental. Accordingly, the statutes regulating this fundamental right must be subjected to strict scrutiny analysis. When reviewed under the correct standard, we conclude that none of the statutory provisions at issue withstand such scrutiny. The Court of Appeals' judgment is therefore affirmed in part and reversed in part.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part and Reversed in Part; Case Remanded to Trial Court.
E. Riley Anderson, C. J., delivered the opinion of the court, in which Frank F. Drowota, III, Adolpho A. Birch, Jr., and Janice M. Holder, JJ., joined. William M. Barker, J., filed a dissenting opinion.
OPINION
We granted this appeal to review the constitutionality of Tennessee's abortion statutes, which restrict the circumstances under which a woman may obtain an abortion and impose criminal liability upon physicians who fail to comply with the statutory restrictions and requirements. After our review of the record and applicable authority, we conclude that the Court of Appeals erred in failing to apply the appropriate standard under the Tennessee Constitution. We conclude that a woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution. As this right is inherent in the concept of ordered liberty embodied in the Tennessee Constitution, we conclude that the right to terminate one's pregnancy is fundamental. The standard we have traditionally applied to fundamental rights requires that statutes regulating fundamental rights be subjected to strict scrutiny analysis. Moreover, when reviewed under the strict scrutiny standard, we conclude that none of the statutory provisions at issue withstand such scrutiny. The Court of Appeals' judgment is therefore affirmed in part and reversed in part.
I. PROCEDURAL BACKGROUND
The abortion statutes at issue in this appeal are codified at Tenn. Code Ann. §§ 39-15-201 and -202 (1997). Among other things, these statutes mandate that second trimester abortions be performed in a hospital, § 201(c)(2) (the second trimester hospitalization requirement); that the "attending physician" inform the patient of statutorily prescribed information
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