Abortion Law in Tennessee
Part Two: What does Dobbs mean here in Tennessee?
What does Dobbs mean here in Tennessee?
In my last post in this series, I discussed the Dobbs decision in June, why it overturned Roe and Casey, and how it opened the door for Congress and state legislatures to regulate abortion. Despite multiple failed attempts by Democrats1, Congress has not taken any action on the issue since Dobbs was handed down.
The Tennessee General Assembly, on the other hand, prepared for this moment. It passed the Human Life Protection Act in 2019. That law is now effective. In this post, I will review the new landscape of abortion law in this State.
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What is considered an abortion?
Here is how abortion is defined under Tennessee law:
"Abortion" means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
Let’s break that down into specific elements:
Use of any instrument, medicine, drug, or any other substance or device
With intent2 to terminate the pregnancy of a woman (other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus)
With knowledge3 that the woman is pregnant
In order for someone to be guilty of criminal abortion, the State has to prove all three of these elements.
There’s another really important aspect of Tennessee’s definition of abortion and that is how it answers this question: when does a woman become pregnant? The law is clear: the woman becomes pregnant at the moment of fertilization. An unborn child is then protected “throughout the entire embryonic and fetal stages . . . from fertilization until birth.” It’s important to point out that nowhere in this definition does it mention the viability of the child. It permits removal of a dead fetus, but if that child is alive, regardless of whether or not it is “viable” outside of the womb, it is protected.
What happens to somebody who has an abortion?
First of all, we need to be clear who the target of this law is.
It is not the pregnant woman. This law specifically excludes the pregnant woman upon whom an abortion is performed or attempted from criminal conviction or penalty.
Neither is it a physician who provides medical treatment that results in unintentional death or injury to the unborn child. This law specifically states that is not a violation.
Neither is it a pharmacist who dispenses medication that could cause an abortion. This law only criminalizes acts done with the intent to terminate a pregnancy and knowledge that it involves a woman who is pregnant.
The target of this law is the physician who intentionally performs an abortion on a woman he or she knows to be pregnant or anybody who assists or profits from that abortion with shared intent and knowledge. Under Tennessee law, that individual commits a Class C felony and is subject to imprisonment for 3-15 years and fines up to $10,000.00.
What exceptions does Tennessee recognize?
Tennessee law recognizes one exception to the general prohibition against abortion: where there is a serious risk of death or substantial injury to the mother. Significantly, this exception is written into the law as an affirmative defense.
The existence of an affirmative defense does not necessarily prevent you from being charged with a crime. If a district attorney wants to charge you with a crime, all he or she has to do is show probable cause that you committed the basic elements of the crime. And, the philosophy of innocent until proven guilty applies with respect to those elements. At trial, the district attorney has to convince the jury that each of those elements is true beyond a shadow of a doubt.
Not so for an affirmative defense. If the district attorney proves the elements of the crime, the burden is on you to prove facts that constitute an affirmative defense. That means that articles like this one are not entirely wrong when they say:
Under Tennessee’s new law, a physician who provides an abortion opens themselves up to being charged with a class C felony. Period. No matter the circumstances.
But — if they are charged, they have an opportunity to prove that the procedure was necessary — either to prevent the patient from dying or to prevent serious risk of what the law calls “substantial and irreversible impairment of a major bodily function.”
Some would have you believe this means that the affirmative defense is little protection for physicians and, more importantly, women with pregnancy complications that pose a serious risk to their health. The argument is that, out of the fear of whether or not they will be able to prove that the mother’s life was in danger, many physicians will simply refuse to provide necessary care to the mother.
I will respond to that in three ways. First, I will show how affirmative defenses work in practice for other common crimes. Second, I will discuss why a physician choosing not to provide life-saving care is assuming even more legal risk. And, third, I will look at the actual language of the law and how it really gives physicians significant guidance and discretion in taking advantage of the defense.
Affirmative defenses are very common in our criminal justice system. If someone attacks you or breaks into your home and you harm them while protecting yourself or your property, you may want to claim “self defense.” That’s an affirmative defense. Or, you may have heard of individuals who committed a crime pleading not guilty by reasons of “insanity.” That is also an affirmative defense.
The reality is that a district attorney’s office has precious little resources and is, generally, not going to charge someone with a crime if they know they can’t win in court. Doing so is arguably a violation of Tennessee’s ethical rules for prosecutors. And, beyond that, it’s just a waste of time and money.
You should also remember that district attorneys in Tennessee are elected. Sure, Tennessee is a very conservative, pro-life state. But according to a recent poll from Pew Research, even among the 37% of adults in the United States who believe abortion should be illegal in “most” or “all” cases, only 27% believed it should be illegal when the pregnancy threatens the woman’s life or health.4 That is probably why not a single state in America has an abortion law that bars abortion when necessary to save the life of the mother.5 Do you really think that's a hill very many district attorneys are going to want to die on?
From the provider’s perspective, failure to provide care that could likely prevent serious injury or death is asking for a medical malpractice suit. If a physician refuses to provide care for fear of being subject to criminal prosecution for abortion and the patient then suffers serious injury or dies, he or she will be sued, likely for millions of dollars. You better believe that weighs heavily on the mind of a physician making this decision.
Additionally, every physician at any hospital with an emergency department is subject to the federal Emergency Medical Treatment and Labor Act (EMTALA).6 Under that law, if the physician ignores or delays treatment of an individual with a medical condition that poses a serious risk to their health, he or she risks substantial penalties and fines of up to $50,000.00 and the hospital itself could also receive similar penalties or even be excluded from the Medicare program for repeated violations (which amounts to 18.4% of Americans and therefore a sizable portion of their patient billing and income). As in-house counsel for a hospital system subject to EMTALA, this is something we take very seriously and physicians are well-trained on.
Finally, let’s look at the actual language of the law as it explains what the physician must show to prove the affirmative defense:
(1) The abortion was performed or attempted by a licensed physician;
(2) The physician determined, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman7…; and
(3) The physician performs or attempts to perform the abortion in the manner which, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, provides the best opportunity for the unborn child to survive, unless in the physician's good faith medical judgment, termination of the pregnancy in that manner would pose a greater risk of the death of the pregnant woman or substantial and irreversible impairment of a major bodily function….
The first element of the affirmative defense is pretty straight-forward. The second and third ones are what is known as a subjective standard. That means that all the physician has to show is that he made a “good faith” judgment that (1) the abortion was necessary to protect the mother from death or serious injury, and (2) the abortion was performed in a way that gave the baby the best chance of living without posing additional risk to the mother.
A “good faith” judgment is simply an honest, sincere decision, as opposed to one with an ulterior motive. A jury would be instructed in the event of a trial that its job is to determine whether the doctor seemed to actually believe that he was doing what he needed to do to save the mother or if he was really just using that as pretext to perform an unnecessary abortion. The jury’s job is not to determine what he or she would have decided in that situation or even what some other doctor would have decided in that situation.
This is not that high of a hurdle to jump. At the end of the day, a physician deciding whether or not to proceed with abortion where a pregnant woman’s life or health are in serious jeopardy has a fairly simple decision to make. On the one hand, you could provide the treatment and risk potentially being charged with a crime you should be fairly confident you would be able to successfully defend yourself against. On the other hand, you decline to provide the treatment and risk being sued for millions of dollars in a medical malpractice suit you are almost certain to lose, being fined tens of thousands of dollars for violating EMTALA, and potentially losing your ability to practice at the hospital that doesn’t want to risk its participation in the Medicare program.
In the grand scheme of decisions that medical providers are faced with on a daily basis, this is not a complicated one. Will there need to be legal training? Sure. And, over time, the law will be further clarified through specific trials and case law. But, in the meantime, there is no reason to expect any real life-saving treatment to be prevented or delayed by this law.
But what about rape and incest?
Tennessee law does not provide any exception for these events. As difficult as those situations are, Tennessee law values the life of an unborn child conceived in rape and incest just as much as any other life. The same goes for children with diagnosable medical conditions which may impair their quality of life. At the end of the day, the Tennessee law reaches the ethical conclusion that these lives are still worth protecting under the law.
What about contraception?
The Dobbs Court expressly stated that its decision does not overturn its prior holding in Griswold v. Connecticut which establishes a constitutional right to the use of contraceptives.8 So, even to the extent Tennessee law even arguably limits the use of contraceptives, it would be unconstitutional.
However, Tennessee law does not prohibit or restrict the use of birth control. In fact, there are not currently any laws anywhere in the United States that restrict access to or prohibit birth control.9 That's because, as discussed above, Tennessee law only protects unborn children after fertilization and it only applies when the woman is known to be pregnant. Birth control is used before pregnancy is known.
While some birth control, including Plan B (i.e., levonorgestrel), may sometimes operate by preventing implantation of the egg after fertilization, the provision or prescription of these drugs is not subject to criminal prosecution under Tennessee law. Under circumstances where Plan B is used, it is too early in the process for anybody to know whether or not the woman is pregnant. If it is used far enough into the pregnancy that the provider could have known the woman was pregnant, it would have no effect. And, because it often works by preventing fertilization, the State could not demonstrate the provider prescribed the drug with intent to terminate a pregnancy.
Where Tennessee law does get involved is with the use of drugs10 with the intent of terminating a clinically diagnosable pregnancy. This is not birth control. It is medically-induced abortion. Birth control prevents pregnancy. Abortion ends a pre-existing pregnancy. Tennessee law views these things very differently. The use of these drugs must comply with both the Human Life Protection Act and additional legal restrictions.11
What if somebody travels to a state where abortion is legal?
Tennessee law does not bar any person from traveling out of state to receive an abortion. A pregnant woman traveling out of state to have an abortion has not committed a crime under Tennessee law because the pregnant woman is expressly excluded from prosecution under the law. Remember, the Human Life Protection Act targets the physician who performs the abortion, and Tennessee courts have no jurisdiction over somebody who performs an abortion outside of this State.12
At the end of the day, in light of Dobbs, Tennessee has been freed to recognize in its law what most of its citizens believe: human life begins at conception and deserves legal protection. With the Human Life Protection Act, it has done that very reasonably and clearly. The law creates a clear and strong exception for protecting the life and health of the mother. It does not unconstitutionally extend into regulation of birth control and efforts to prevent pregnancy. Nor does it restrict interstate travel.
This is good law. Contrary to the hysterical criticism it has faced, it will save and protect lives. It does not endanger them. It extends fundamental human rights to the most vulnerable among us. It does not trample on the rights of women. The law maintains a consistent ethic of life and it should be applauded.
In my next post, I will discuss about what comes next, both in terms of legal issues and political debates.
Under Tennessee law, a person acts “intentionally” when it is the person’s conscious objective or desire to cause the result. Tenn. Code Ann. § 39-11-302(a)
Under Tennessee law, a person acks “knows” something when the person is aware that the circumstances exist.
The law also clarifies that a woman threatening self-harm does not meet this standard. In such a case, there are procedures in place for involuntary commitment to protect both the mother and the unborn child.
The Dobbs Court explained that rights regarding contraception are very different from the right to abortion because abortion involves terminating a life in which the State has a much more important interest in protecting than the “potential life” that contraceptives interrupt. Further, the stare decisis analysis would be very different in determining whether or not to overturn Griswold.
Examples of drugs that are used for these purposes: RU-486 (i.e., mifepristone), misoprostol, and methotrexate
Until January 1, 2023, the applicable restrictions are: (1) the physician must be physically present in the room with the pregnant woman when the drug is prescribed, administered, and/or dispensed, and (2) if the physician knows or should know that the woman is pregnant, these drugs can only be prescribed when the exception for the mother’s health applies. Tenn. Code Ann. § 63-6-241.
After January 1, 2023, the Tennessee Abortion-Inducing Drug Risk Protocol Act takes effect which requires the physician to take the following additional steps: (1) run a pregnancy test; (2) determine the patient’s blood type, and, if the patient is Rh negative, offer to administer RhoGAM at the time of the abortion; (3) Inform the patient that the patient may see the remains of the unborn child in the process of completing the abortion; and (4) Document, in the patient's medical chart, the gestational age and intrauterine location of the pregnancy, and whether the patient received treatment for Rh negativity, as diagnosed by the most accurate standard of medical care.
Tennessee law gives jurisdiction to its courts only to punish criminal offenses “committed in this state.” Tenn. Code Ann. § 39-11-103.