A rider to the resolution for a constitutional amendment on abortion to the Tennessee Constitution has a fatal flaw, Sen. Mark Norris said Friday.

The resolution seeks to make the Tennessee Constitution neutral on abortion, said Norris (R-Collierville).

"This proposed constitutional amendment is not a ban on abortions," he said. "It's really about the balance of power between the legislative and judicial branches (of state government)."

The resolution is to be debated on the state Senate floor Monday night.

Norris said he fears an amendment proposed by Sen. Roy Herron, (D-Dresden) would throw the issue of abortion back into the hands of judges.

"I'm not comfortable with Sen. Herron's amendment," Norris said. "He 's

addressing a vital concern about women's health that needs to be addressed, but it leaves the issue with the courts and that bothers me."

The resolution, proposed by` Sen. David Fowler, (R-Signal Mountain), says only that "nothing in this (Tennessee) Constitution secures or protects a right to abortion or the funding thereof."

Herron's proposed amendment would add to the end of that sentence the words: "except that government shall not interfere with or prevent a woman from obtaining a medical procedure, including abortion, to protect her life or when she is the victim of rape or incest."

If Fowler's original proposal is placed in the state Constitution and everything else remains the same, lawmakers could essentially outlaw abortions - except where the life or health of the mother is threatened because those are protected under the U.S. Constitution.

Or they could again pass laws requiring waiting periods for women wanting abortions, along with several other restrictions that were struck down by the Tennessee Supreme Court.

Justices found in 2000 that the right to an abortion was guaranteed under the state Constitution, which has privacy protections much broader than the U.S. Constitution. That means current state law has few restrictions on how abortions are performed, which led to what Fowler claims is "abortion on demand."

If the federal abortion protection in the Roe v. Wade decision is struck down and Fowler's original proposal is written into the state Constitution, nothing immediately changes, but lawmakers could make abortions completely illegal. However, Fowler says he expects he and his colleagues in the General Assembly almost certainly would allow an exception if the woman's life was endangered.

If Herron's amendment to the resolution is approved and Roe v. Wade is struck down, Norris said, the state would have to allow abortions to protect the woman's life and if she's the victim of rape or incest.

"We believe the judicial branch has usurped the legislative branch," he said. :"We don't believe three people (a majority on the Tennessee Supreme Court) ought to make this determination for five million citizens of the state - it's just not democratic."

Norris said legislative acts, unlike Supreme Court decisions, can easily be changed.

"If the Legislature passes a law that is unfair or flawed it can be amended," he said. "But it's hard to change a Supreme Court decision."

Asked if he feels the resolution will pass Monday night, Norris said he isn't sure.

"It's a very emotional issue and it depends on whether people vote with their heads or their hearts," he said. " It's really about a balance of power and preserving legislative prerogatives."

Norris said he hopes an alternative to Herron's amendment that protects women's health can be found.

"I don't know yet what that would look like, but if I can come up with the wording I will propose an alternative."

Even if senators approve the resolution, it would have to make it through the House committee system, where anti-abortion measures rarely succeed, and be approved by the full House.

Members of the next General Assembly would then have to approve it by a two-thirds majority before it could be placed on the 2006 ballot for voter consideration.

Norris represents the 32nd Senate district, including Dyer, Lauderdale, Tipton and part of Shelby counties