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1996 Tennessee Attorney General Reports and Opinions 1 (1996)

handle is hein.sag/sagtn0148 and id is 1 raw text is: STATE OF TENNESSEE OFFICE OF THE ATTORNEY GENERAL 500 CHARLOTTE AVENUE NASHVILLE, TENNESSEE 37243-0497 January 9, 1996 OPINION NO. 96-001 Amending Certain Criminal Statutes to Prohibit Harm to Unborn Children QUESTION is a bill that amends Tenn. Code Ann. § 39-13-107 and § 39-13-214 to criminplize certain actions that cause the death or injury of the unborn offspring of a human being conceived, but not yet born, constitutional? Neither amendment affects the other portions of Tenn. Code Ann. § 39- 13-107 or 214, which explicitly state that the provisions do not apply to the state's abortion laws or to acts c mmitted under the usual and customary standards of medical practice during diagnostic or therapeutic treatment. QlINllI In 1989, this office determined that a similar bill was constitutionally suspect. Op. Tenn. Atty. Gen. 89-28 (February 22, 1989) (attached). Based on caselaw from other states and the United States Supreme Court since that time, it is now the opinion of this office that such a bill is facially constitutional. But, in certain situations, the application of the bill could violate the Eighth Amendment's prohibition against cruel and unusual punishments. ANALYSIS Your proposed bill amends two statutes. It amends Tenn. Code Ann. § 39-13-107 to define the terms another, individual, individuals, and another person as used in that part of the Code to include the unborn offspring of a human being conceived, but not yet born. This amendment will apply to offenses involving assault. It also amends Tenn. Code Ann. § 39-13-214 to define person, another, and another person in the same way. This second amendment applies to the homicide statutes. Neither amendment affects the other portions of Tenn. Code Ann. § 39-13-107 or 214, which explicitly state that the provisions do not apply to the state's abortion laws or to acts committed under the usual and customary standards of medical practice during diagnostic or therapeutic treatment. Consequently, your request deals solely with the state's ability to criminalize nonconsensual acts that injure or cause the death of these unborn offspring.

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