There is another heartbeat bill that’s being debated in Tennessee. This week, politicians in the state Senate held two initial hearings about SB 1236. Although the vote on this legislation is unlikely to happen until next year, the draft is already making waves with pro-life and pro-abortion activists. Like other heartbeat bills, Tennessee’s is likely to face immediate legal challenge from Planned Parenthood, but the Volunteer State has a unique plan to try and fight Roe v. Wade.

When it comes to heartbeat bills, it seems like most follow the same script. The bills usually limit abortion to the first six weeks of pregnancy, when the preborn heartbeat is first detected, and all were immediately challenged by pro-abortion activists after passing the legislature. While details of the bills are slightly different, each share one key similarity in that the bills were challenged under the 14th Amendment and failed. At this point, the bills were struck down when challenged in the courts, which means that pro-life states end up having to pay their own attorney fees along with fees of legal challengers like Planned Parenthood and the American Civil Liberties Union. Depending on how far the litigation goes, the bill could be in the millions of dollars.

Tennessee politicians don’t want to engage in a court battle that will help fund the abortion industry. To avoid that possibility, pro-life supporters are trying to find a compromise that would allow them to challenge Roe without lining the pockets of abortion supporters in the process. That’s why earlier this year another heartbeat bill from the Tennessee House stalled in the Senate despite the support for pro-life legislation. The sentiment behind the law was great, but lawmakers wanted to make sure that it has a chance to succeed.

The answer is the Ninth Amendment of the U.S. Constitution.

For those unfamiliar with the Ninth Amendment, and that includes most average Americans, it essentially enshrines respect for the tenets of historic English common law into the U.S. Constitution. Adam MacLeod, a law professor, describes common law as “(rights that) have existed in our legal tradition from the time immemorial.” David Fowler, president of Family Action Council of Tennessee, has described it as “the absolute … right to life, liberty and property.”

The 14th Amendment focuses on equality. It was established after the Civil War and utilized by lawyers and activists to support the argument for Roe. As a result, most heartbeat bills have been framed to tackle the previous legal interpretations that allowed abortion in the first place. Against this judicial interpretation and application of the amendment in favor of abortion, challenges to Roe with heartbeat bills and other legislation have failed. Creating a pro-life bill with the Ninth Amendment in mind is entirely different and could possibly have the Supreme Court reconsider the flawed arguments of Roe.

David Fowler started working on this legislation in late March after being asked to draft a proposal that could have more constitutional grounding than what has been seen in other states. In correspondence with The Daily Citizen, he provides some additional analysis:

“So, the clear import of the Ninth Amendment is that rights belonged to persons in the mother’s womb. The Court’s 14th Amendment jurisprudence has denied that rights can belong to the unborn because they aren’t “constitutional “persons.” The common law rights protected by the Ninth Amendment would say that the unborn are rights-bearing persons within the meaning of the Constitution (the Ninth) and the Court’s 14th Amendment jurisprudence says they aren’t. The two are irreconcilable, yet the Court knows that for hundreds of years, even up to today, the unborn are treated as persons in every other area of law—criminal, tort, and property, but they make one arbitrary distinction just for this one medical procedure. It’s crazy that a physician could be sued for malpractice for injuries caused to an unborn child, but an abortionist can kill the child. That is irrational and is the epitome of arbitrary law and arbitrary law is the exact opposite of the rule of law.”

In legal terms, it’s a fascinating argument and one that could end up being rather effective. There are few instances in which the Ninth Amendment has ever been used in court cases. Just the novelty of the approach could lead to some interesting results.

David Fowler and politicians in Tennessee want to have the Supreme Court “reexamine the premise” of Roe from a constitutional perspective. A couple of previous as well as one current Supreme Court Justices have acknowledged that there are deep flaws in Roe, and perhaps their approach might create a case that can really force the nation’s highest court to reexamine abortion in a different light instead of engaging in politics. Tennessee’s strategy is unique, and sometimes that different perspective is all that it takes to change the tide.

See David Fowler’s detailed analysis here.