Tennessee’s ban on abortion took effect August 25, 2022, two months after the Supreme Court’s landmark Dobbs v. Jackson Women’s Health Organization overturned federal protection for abortion. As of today, the state’s abortion law, codified in Tennessee Code Annotated § 39-15-213, is one of the strictest in the nation.
The law, drafted in 2019 to be triggered upon the overturning of Roe v. Wade, makes performing an abortion a felony and provides no exceptions for cases of incest or rape. It also places a difficult burden on healthcare providers by subjecting them to potential criminal prosecution. In response to concerns from the medical community and the community at large, some Republican and Democratic lawmakers are busy drafting amendments to the abortion ban.
Chilling Effect of Tennessee Abortion Ban on Healthcare Providers
As currently written, the Tennessee law does not offer any protections for healthcare providers in the context of life-saving abortions, but instead requires physicians to use as an “affirmative defense”—to prove 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 woman.” The law provides that an abortion or attempted abortion is a Class C felony, punishable by up to 15 years in prison.
Accordingly, the current law places the burden of proof on healthcare providers and subjects them to arrest and criminal prosecution. Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi, explained that the wording of this law “will make the doctor
1. Tenn. Code Ann. § 39-15-213 (2022).
second guess their medical training and expertise when choosing a treatment plan or risk a felony criminal conviction.”
Another medical professional, Nikki Zite, M.D., M.P.H., on the executive committee of the Tennessee section of the American College of Obstetricians and Gynecologists, expressed similar concerns. She explained that the trigger law might lead doctors to hesitate, to contact lawyers during medical emergencies, while their patients get sicker: “We are now at the mercy of the criminal justice system,” Zite said. “Should I win? I think so. But do I want to go through that? No. I don’t want to feel guilty until proven innocent.”
Similarly, Molly A. Meegan, the chief legal officer and general counsel of the American College of Obstetricians and Gynecologists, opposes any “criminal penalties, lawsuits, fines or other punishments for providing the full spectrum of evidence-based care.” She explained that doctors, who are already under an incredible amount of stress, are caught in the middle. “They are becoming a punching bag for legislators trying to make a political point.”
Proponents of the Tennessee Abortion Ban dismiss these concerns. Will Brewer, an attorney and lobbyist with Tennessee Right to Life, thinks doctors with such concerns are exaggerating the possible consequences. “I think you’re going to be hard-pressed to find a prosecutor that is going to prosecute a physician when they can back up their claim that they did
this to save the life of the mother,” Brewer said. On the other hand, Mr. Brewer is on record arguing that lawmakers chose the wording for a specific reason: to make it difficult for doctors to perform an abortion.
Tennessee already ranks toward the top of the list of states with high maternal mortality rates. The ultimate fear is that doctors will move out of the state of Tennessee to avoid dealing with the Abortion Ban. Providing some relief for physicians, the Interstate Medical Licensure Compact, which coordinates and streamlines the process by which physicians can be licensed in multiple states, changed its interstate compact rules in November due to increased concerns from doctors. Previously, under the Interstate Medical Licensure Compact, a physician whose license in one state was revoked or suspended would automatically face the same penalty for 90 days in the nearly 40 states that have joined the compact. But now if a physician is licensed in more than one state and one state takes away the physician’s license solely because of abortion, the other state does not have to follow that suspension order.
Proposed Amendments to the Tennessee Abortion Ban
Governor Lee and other top Republican lawmakers have spent months defending the current law, arguing that pregnant women are protected from harm and doctors are unlikely to
face any felony charges outlined in the statute. However, groups of Republican and Democratic lawmakers facing public pressure have begun pushing for amendments.
- Removing the Affirmative Defense and Clarifying Situations in Which Abortion is Allowed
Most recently, on February 14, 2023, Tennessee legislators advanced a bill that removes the “affirmative defense” element for medical providers and clarifies situations in which abortion is allowed. This bill explicitly states that “criminal abortion … does not include a termination of pregnancy of a woman known to be pregnant that is performed by a physician to (i) remove a medically futile pregnancy; (ii) remove an ectopic or molar pregnancy; (iii) dispose of an unimplanted fertilized egg; (iv) address a lethal fetal anomaly; or (v) prevent or treat a medical emergency (while providing best opportunities for the fetus to survive).
The bill’s sponsor, Representative Esther Helton-Haynes, R-East Ridge, stated that “[t]his bill clarifies what I believe was the original intent of (the law), which is to ban elective abortion in the state of Tennessee.”
Other representatives at the hearing voiced concerns that doctors could be afraid to do their jobs out of fear of being criminally prosecuted as the law is currently written. “We have to protect our doctors,” said Representative Sabi Kumar, R-Springfield, who is a surgeon. “So, they
8. Proposed Amendment No. 003797, 2023 Tennessee Senate Bill No. 745, Tennessee One Hundred Thirteenth General Assembly – First Regular Session, 2023 Tennessee House Bill No. 883, Tennessee One Hundred Thirteenth General Assembly – First Regular Session. See also https://capitol.tn.gov/Archives/Dashboard/HR%20Scanned%20Amendments/HB0883_Amendment%20003797.pdf
feel they’re fulfilling the Hippocratic oath, doing God’s work, saving and preserving lives – that’s what physicians do.”
Mr. Brewer, with Tennessee Right to Life, was present at this hearing and threatened that there could be more consequences for those who support this amendment. “I would not consider this a pro-life law. And in discussions with our (political action committee), they have informed me that they would score this negatively,” he said. His remarks sparked condemnation from Democratic and Republican lawmakers and Speaker Sexton issued a firm rebuke as a result of Mr. Brewer’s threat.
Speaker Sexton has been one of the top Republicans to call for amendments to the law—for shifting the burden of proof to prosecutors rather than doctors and for exceptions for rape and incest. On the other end of the political spectrum, Democrats have supported the proposed changes, even if they would like for them to go further. At this point, the proposal has several hurdles to cross before reaching Governor Lee’s desk. And, in the Senate, Lieutenant Governor Randy McNally has said he does not believe the abortion ban needs changing but that he will not block any proposals from moving forward. Governor Lee has declined to say whether he will veto any amendments.
- Rape or Incest Exception
Though the Helton-Haynes’ bill is the first to get a committee hearing (making the most progress), other bills to introduce exceptions into Tennessee’s abortion ban have also been filed. For example, another controversial piece of the legislation is that the Abortion Ban provides no exceptions in cases of rape or incest. One such pair of bills seeks to address that issue. Senate Bill 857 and House Bill 1440, sponsored by Sen. Ferrell Haile, R-Gallatin and Rep. Iris Rudder, R-Winchester, would legalize abortions for pregnancies that result from rape or incest under certain circumstances and with strict requirements.
This proposed exception would require that a licensed physician confirm that the pregnant woman reported the offense to the appropriate law enforcement agency, submit to a forensic medical exam (if appropriate and available), and ensure that a sample of the embryonic or fetal tissue extracted during the abortion will be preserved and available to be turned over to the Tennessee Bureau of Investigation for use in the investigation of the offense. Importantly, this exception would only apply during the first trimester: for women less than 8-10 weeks pregnant depending on their age.
The bill also includes significant criminal penalties for “false” reporting of sexual assault to obtain an abortion, which has sparked some criticism over the potential chilling effects for sexual assault survivors. Specifically, a defendant “must be sentenced to a mandatory minimum
13. 2023 Tennessee Senate Bill No. 857, Tennessee One Hundred Thirteenth General Assembly – First Regular Session, 2023 Tennessee House Bill No. 1440, Tennessee One Hundred Thirteenth General Assembly – First Regular Session. See also https://www.capitol.tn.gov/Bills/113/Bill/SB0857.pdf
sentence of at least three (3) years in incarceration, and the person must serve one hundred percent (100%) of the three-year sentence.”
On February 6, 2023, Senate Bill 857 was passed on second consideration and referred to the Senate Judiciary Committee. A day later, House Bill 1440 was passed on second consideration and assigned to the Population Health Subcommittee.
- Clarifying that Contraception is Not Abortion
Tennessee’s Abortion Ban does not explicitly mention contraception, though confusion has caused public concern that emergency birth control like Plan B would be outlawed. Plan B and other “morning after” contraception are not abortion pills. Rather, they prevent a woman’s egg from fully developing and prevent eggs from attaching to the wall of the uterus.
Some have expressed concern that certain long-acting forms of contraception, such as intrauterine devices (IUDs) may be affected by the law as well. IUDs are T-shaped devices implanted in the uterus to prevent sperm from fertilizing eggs. Ashley Coffield, of Planned Parenthood, notes that IUDs do not trigger abortions. Though she added: “But, it’s about the enforcement of this law and how it’s interpreted. How it’s put into effect in Tennessee is left to be seen.”
15. 2023 Tennessee Senate Bill No. 857, Tennessee One Hundred Thirteenth General Assembly – First Regular Session, 2023 Tennessee House Bill No. 1440, Tennessee One Hundred Thirteenth General Assembly – First Regular Session. See also https://www.capitol.tn.gov/Bills/113/Bill/SB0857.pdf
In response to this concern about the ban’s effect on contraceptives, a set of companion bills, Senate Bill 885 and House Bill 1084 sponsored by Sen. Raumesh Akbari D-Memphis and Rep. Jessi Chism D-Memphis, clarify the definition of the word “abortion.” The language makes clear that “abortion does not include the use of contraceptives, including hormonal birth control, intrauterine devices, or emergency contraceptives.”
On February 6, 2023, Senate Bill 885 was passed and referred to the Senate Judiciary Committee. A day later, House Bill 1084 was passed and assigned to the Population Health Subcommittee.
With the Tennessee Abortion Ban being the strictest in the nation and undergoing rapid potential change, it is important to consult with experienced attorneys should you have a question or concern regarding this law. With decades of experience working with prosecutors, law enforcement, medical professionals, and the state legislature, the legal team at Davis & Hoss is ready to help individuals facing potential allegations under this law or those that simply have questions. Contact Attorney Lee Davis at firstname.lastname@example.org or by phone at 423-266-0605 for more information.
18. 2023 Tennessee Senate Bill No. 885, Tennessee One Hundred Thirteenth General Assembly – First Regular Session, 2023 Tennessee House Bill No. 1084, Tennessee One Hundred Thirteenth General Assembly – First Regular Session.