Making History

After more than 17 years, David Fowler can still tell you what happened on Sept. 15, 2000.

It was a Friday, and Fowler—then a Tennessee state senator—got a call from a friend who worked in the judicial system and wanted to meet him ASAP. They did, and the friend handed him an advance copy of a Tennessee Supreme Court ruling. “He told me, ‘This is being released today,’ ” Fowler says. “ ‘I thought you needed to know.’ ”

It didn’t take Fowler long to see why.

In Planned Parenthood v. Sundquist, the court had found a right to abortion in the Tennessee Constitution even stronger than the federal Roe v. Wade ruling—one that would strike down all the state’s abortion restrictions and regulations. Those included waiting-period and informed-consent laws of a sort the U.S. Supreme Court had found permissible.

“I read it over and resolved right then and there that I was going to bring a constitutional amendment before the legislature,” Fowler says. “We had to give the people a chance to overturn this.”

When the Senate began its next session in 2001, he did just that. And so began a long, long journey. More than a decade to get the amendment through the legislature (May 2011). Two and a half years more for voters to approve it (November 2014). Then came the inevitable federal-court battle.

But on Jan. 9, 2018, a panel of the Sixth U.S. Circuit Court of Appeals upheld Amendment 1, restoring the power of elected officials to regulate abortion in Tennessee. 

On Feb. 28, the full Sixth Circuit rejected abortion activists’ appeal to have the case reheard. And short of the U.S. Supreme Court taking up the case—which is highly unlikely—the amendment will stand.

That’s hugely gratifying to Fowler, who long ago left the Senate but has continued fighting for pro-life measures as president of the Family Action Council of Tennessee, Focus on the Family’s public-policy partner in the state.

“To be a part of this feels like being a part of history,” he says. “As far as I know, this is the first time ever in the United States that the people have voted to overturn any court-created right to abortion. It’s groundbreaking.”

Indeed it is. Because while this is the first time a state has passed such an amendment, it may not be the last: West Virginia has a similar measure on the ballot this November. And the way Tennessee pro-lifers got the job done is a classic example of how to do it in other states too.

Forcing the Issue

When Fowler first introduced the amendment, he had no illusions of a quick victory. In 2001, many members were inclined to support the bill, but far fewer than the required two-thirds vote.

That didn’t stop him.

“It couldn’t be about ‘Would we succeed?’ but ‘Would we stand for what’s right and true?’ ” Fowler says. “We had to force the issue.”

Three times during his tenure, the amendment did pass the Senate, only for House leadership to block it. But when he left at the end of 2006 to join Family Action Council of Tennessee, other legislators kept the effort going. And elections kept happening.

By 2011, pro-life legislators had won sizable majorities in both chambers. In April, they joined forces  to pass the measure, 24-8 in the Senate and 76-22 in the House. The language voters would see on the ballot:

“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.”

But voters wouldn’t see those ballots until 2014, due to a state requirement that constitutional amendments be decided in the same election as the governor’s race. That gave amendment supporters plenty of time to get organized. 

Pro-life groups and leaders formed the Yes on 1 Ballot Committee, to do the day-in, day-out work of building support. They had a big job ahead.

“The very earliest polling showed that it was going to be difficult to win,” says Brian Harris, president of Tennessee Right to Life and coordinator of Yes on 1. “That’s what made the messaging so vitally important.”

Guided by the experience of pro-life campaigns in other states, Yes on 1 invested in polling and focus groups. It wasn’t cheap, but it was worth it, Harris says.

“We conveyed that legal abortion was not going to end on Nov. 5, 2014, if this passed,” he says. “But this would let the people’s voices be heard through their elected officials—and allow the restoration of some common-sense protections for women and girls in our state as well as for the unborn child.”

To the extent that getting the message out took money, however, this was a mismatch.

Yes on 1 was able to raise a little under $1.7 million. Their main opponents, Vote No on Tennessee 1, raised more than $4.2 million—nearly all of it from distant Planned Parenthood groups in states like California and Massachusetts. The largest single donor: Planned Parenthood of the Great Northwest and the Hawaiian Islands ($800,000).

“We were very careful with every dime,” Harris says. “We built the campaign knowing that we would have to have a stronger ground game than they did, because we wouldn’t have the financial resources they did.”

The Volunteer State

Despite the money gap, pro-lifers had other assets.

“We realized that our greatest resource was the body of Christ.” says Fowler, who served on the Yes on 1 board of directors. “If the church could be moved from ‘We don’t engage in politics’ to ‘This is an issue where we must engage,’ we had a strategy to overcome the disparity in money.”

Good plan. Numerous church bodies got behind Amendment 1, including the Tennessee Baptist Convention, the Tennessee Church of God and all three of the state’s Catholic dioceses. Hundreds of individual congregations and parishes welcomed pro-life speakers and materials.

“In 2014, I think I traveled over 5,000 miles around the state speaking about the amendment,” Fowler says. “The Right to Life people were traveling all over even more than I did.”

Myra Simons, who chaired the Yes on 1 board, was one of them.

“We were in a different church every week—a different service every Sunday morning, Sunday night, Wednesday night,” Simons says. “Most churches were very open to us, from large churches down to small country churches. Pastors were just wonderful.”

These visits weren’t just speeches. They were training sessions, given to a variety of audiences—churches, pregnancy care centers, community groups.

“We built this massive grassroots machine,” Simons says. “We didn’t do all the education ourselves. We trained people to educate others in their churches and communities.”

People like David Hoke, a Murfreesboro real-estate broker who joined with other area Christian businessmen to promote Amendment 1.

For him, it started in early 2014, when Fowler came to speak to a small group of businessmen. “He talked about ‘What would it look like if we had a victory for the Lord here in Rutherford County?’ ” Hoke says.

Hoke and others caught the vision. Although businessmen can find it risky to deal with controversial issues, they started supporting Amendment 1 any way they could—speaking to Bible-study groups, speaking with friends, distributing fliers and yard signs, you name it. 

“We were about as loose-knit a grassroots group as you can get,” he says. “We all knew we were open to personal attacks, so each of us managed it different ways.”

They also helped financially, organizing a fundraising event that brought in close to $20,000, which was then doubled by a matching grant.

“We were trying to raise some funds, but our main motive was to raise awareness,” Hoke says.

And that’s how things went across the Volunteer State. While the measure had a few high-profile supporters, like singer Ricky Skaggs and NASCAR driver-turned-analyst Darrell Waltrip, most of the work was done close to home.

“There were hundreds and hundreds of folks who sacrificed in ways many of us will never know,” Harris says—“everything from holding bake sales to giving up holidays so yard signs could be sorted and delivered. When these folks got an opportunity to make a difference, they absolutely did.”

‘Thank You, Jesus’

As Election Day dawned on Nov. 4, 2014, Amendment 1 was ahead in the polls, but its lead was shrinking, due to an all-out ad blitz from opponents. The race was tight, and some pro-lifers were feeling tense.

Simons, for one. She and some friends were watching the returns on TV at her house when her phone rang. It was Harris, calling from the Right to Life office in Nashville, which served as campaign headquarters.

“He said, ‘Myra, you’ve got to get down here,’ ” she tells Citizen. “So we all ran down to the office. There was electricity in the air.”

It was celebration time. Amendment 1 had passed, 52.6 to 47.4 percent.

“The first thing we did was fall on our faces and say, ‘Thank You, Jesus,’ ” she says, her voice breaking as she recalls the night. “ ‘Thank You for this tremendous victory that Satan was saying there was no way we could win.’ ”

Now all that remained was the inevitable court battle. It hinged on a provision in the Tennessee Constitution requiring amendments not only to win a majority of votes cast for them, but at least half the total cast for governor, plus one. Opponents argued that only ballots which also included a vote for governor could be counted—and since the state hadn’t kept track of which ballots those were, the election results should be tossed out.

Long story short, they found a federal judge to agree with them, Kevin Sharp of the U.S. District Court for the Middle District of Tennessee. But when the case reached the Sixth Circuit, a three-judge panel unanimously upheld the voters’ choice.

“Essentially, the judges said the plaintiffs’ complaint can be reduced to the fact that the campaign of the amendment’s supporters was more effective than theirs,” says Fowler, an attorney. “In fact, they said it twice in their ruling.”

The judges were clear: This was the last word.

“Although the subject of abortion rights will continue to be controversial in Tennessee and across our nation,” they wrote, “it is time for uncertainty surrounding the people’s 2014 approval and ratification of Amendment 1 to be put to rest.”

So Now What?

What impact will all this have?

For one thing, a major obstacle to limiting and regulating the abortion industry has been cleared away. Since 2015, Tennessee has passed a slew of laws backed by pro-
lifers, including a 48-hour waiting period, informed consent and, most recently, a ban on abortions after viability—which can come as early as 20 weeks.

That thrills Simons, who had an abortion in her youth and now is devoted to helping women and girls not go down that path.

“We know, statistically, that women change their minds because of laws like these,” she says. “When they can make an educated choice, they choose life many, many times.

“It blesses my heart beyond words. All the work, all the hours, all the late nights for almost two years—but babies are going to be saved, and women and men are going to be changed because they’re going to know the truth.”

What’s more, Tennessee provided a model for West Virginia legislators, who this March agreed to send voters a comparable amendment. There, a 1993 state Supreme Court ruling has forced taxpayers to pay for elective abortions—a situation amendment backers hope to reverse in November’s vote. 

Allen Whitt, president of the Family Policy Council of West Virginia, feels they’ll succeed. “West Virginia passed this pro-life resolution by a bipartisan super-majority,” he says. “We expect the voters to support this referendum by a wide margin this November.”

To Fowler, seeing other states take up the same approach is a step-by-step fulfillment of a longtime dream. He’d love to see Congress one day take the same route—sending the states an amendment saying the U.S. Constitution doesn’t deal with abortion.

“That would return the issue to the states, where it had been before Roe,” he says. “That’s the way federalism is supposed to work.”

Fowler knows that seems like a distant prospect. But he’s big on long-term thinking. And his experience with Amendment 1 has only strengthened that disposition.

“Let none of us grow weary in our well doing, for in time we will reap,” he says, citing Galatians 6:9. “Praise God to Whom all glory is due for this victory for life 17 years in the making.”

 

For More Information: To learn more or follow ongoing developments in Tennessee or West Virginia, visit the Family Action Council of Tennessee at factn.org and the Family Policy Council of West Virginia at familypolicywv.com.

Originally published in the May 2018 issue of Citizen magazine.
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