By Gary Humble | Tennessee Stands
In 2019, Governor Bill Lee signed Tennessee’s trigger law (restriction on abortions), which was set to become effective at such a time that Roe v Wade might be overturned by the US Supreme Court. And conservatives cheered while Republican elected leaders took a victory lap.
However, little did we know that after 50 years, the 1973 precedent would indeed be overturned in 2022 by the Supreme Court decision in Dobbs v Jackson. Shortly after the Court’s ruling, Tennessee’s trigger law became effective, and providers are now prohibited from performing abortions in the state of Tennessee from conception. You would think that this would be a massive win for the state of Tennessee, and pro-life lawmakers would have been proud to stand on what they had accomplished. Not so much. The General Assembly’s first order of business in 2023 was to amend the effective abortion statute to appease the medical community. House Bill 883, which started out as a caption bill, was later amended in committee to address these concerns. The concerns from the medical community, of course, centered around the potential liability and prosecution that might ensue should a physician perform any manner of abortion procedure in the state.
Let’s camp there for just a moment. If you are a pro-life advocate, and an anti-abortion law in your state has doctors concerned that they could be prosecuted and lose their medical license if they perform an abortion, that’s a good thing, right? That law, in that case, is a deterrent and performing its intended function. Yet, Republican lawmakers caved on the issue and sought to compromise with these doctors. Perhaps they were trying to avoid any potential lawsuit. Or perhaps they simply know where their bread is buttered (ahem…Vanderbilt).
The primary change that was made to the law rests in T.C.A. §39-15-213(c), which the courts now refer to as the Medical Necessity Exception. Essentially, the original 2019 trigger law framed the prohibition of abortion on what is called an affirmative defense. With the law structured in such a way, this left doctors wide open to prosecution, whereby they would have to prove their innocence in court based on certain criteria defined in the law if they ever performed an abortion. This is a strong deterrent.
But in 2023, lawmakers did away with the affirmative defense language and opted for a softer version by putting exceptions into the law whereby doctors could not be prosecuted based on certain criteria defined in the law. Here is the impact of that change.
Exception vs. Affirmative Defense
Some state abortion bans lack exceptions but identify situations that may be used as an affirmative defense in court – among these are Tennessee’s 6-week LMP ban [revised], Kentucky’s 15-week ban (but not the state’s earlier gestational bans), Texas’ total bans, and all of Missouri’s bans. An “affirmative defense” allows someone charged with a crime to show in court that their conduct was permissible even though the action itself is illegal. An affirmative defense does not make it legal to provide abortion care in the situations delineated in the law and means that a clinician who provided abortion care is open to prosecution – regardless of the reason they provided an abortion – and would bear the burden of proof to demonstrate that they provided care according to the conditions delineated as possible affirmative defenses in the abortion ban. Bans that rely on an affirmative defense leave physicians more vulnerable to criminal prosecution and they make it even riskier for physicians to provide abortion care in situations where the life or health of the pregnant person is at risk.i
Quite simply, once hard-fought restrictions on abortion were in place after Roe v Wade fell, Republican lawmakers compromised with the medical community to try and find more palatable language. We won and then gave back the trophy.
After all of the compromising and placating to baby murderers, and perhaps working to stay out of court, the state was sued anyway in September of 2023. In the lawsuit, Nicole Blackmon, et al. v. State of Tennessee, et al. funded by the Center for Reproductive Rightsii, abortion activists claimed that the Medical Necessity Exception in Tennessee law was unconstitutional and deprived them of their rights to medically necessary healthcare. And in a court ruling issued by a three-judge panel on October 17, 2024, the court agreed.
You have to admit that the timing of all of this is quite interesting. The lawsuit was not filed in 2022 when the law became effective and included affirmative defense language. But the lawsuit was filed in 2023 after lawmakers amended the law to remove affirmative defense language from the law in favor of more reasonable exceptions. And it is these exceptions that the court now finds unconstitutional.
To be clear, the court found the law to be unconstitutional “as applied” meaning that the law is not completely blocked by the court and abortions are still prohibited in Tennessee. But under this new ruling, at least for now, doctors have a more liberal ability to perform an abortion where they feel in their own “reasonable medical judgment” that the abortion is medically necessary.
For this very reason, Tennessee Stands stood firmly against House Bill 883 and asked conservative legislators to vote NO, standing by the 2019 trigger law and doing everything we can to prohibit the practice of abortion in this state. At the end of the day, only two (2) Republicans voted no (Rep. Clay Doggett and Rep. Brian Richey) and three (3) Republicans abstained from the vote (Rep. Jody Barrett, Rep. Rusty Grills, and Sen. Mark Pody).
Republicans in Tennessee should be embarrassed. After working so hard to put pro-life protections in place, they sold out under pressure from the medical lobby, resulting in this vulnerability. Now, the law could very well face further scrutiny in the courts, all because lawmakers were too cowardly to stand firm when it counted. When you give the enemy an inch, they’ll take the whole field.
[i] Felix, M., Sobel, L., & Salganicoff, A. (2024, June 6). A Review of Exceptions in State Abortion Bans: Implications for the provision of abortion services | KFF. KFF. https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services/
[ii] Borter, G. (2023, September 12). Women denied abortions file lawsuits in Idaho, Tennessee and Oklahoma over bans. Reuters. Retrieved October 23, 2024, from https://www.reuters.com/world/us/women-denied-abortions-file-lawsuits-idaho-tennessee-oklahoma-over-bans-2023-09-12/
