Abortion will become illegal in Tennessee when the state's "trigger law" goes into effect Aug. 25. While there are many unknowns about how prosecutors will enforce the law, attorneys and physicians say it's important for providers and patients to know what the statute does and does not protect.
Tennessee law defines abortion as "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."
The law defines pregnancy as "the human female reproductive condition of having a living unborn child within her body from fertilization until birth."
Currently, abortion in Tennessee is subject to the "heartbeat bill," which the General Assembly passed in 2020. That law went into effect June 28 and made it illegal in Tennessee to perform an abortion when a fetal heartbeat can be detected, which is typically around six weeks after the first day of a woman's last menstrual cycle - otherwise known as six weeks gestational age.
On Aug. 25, Tennessee's Human Life Protection Act, generally known as the Trigger Act, will go into effect. The law prohibits abortion after fertilization except in the cases where a provider deems it necessary 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.
In all other cases, a person who performs or attempts to perform an abortion is committing a felony, which under Tennessee law carries a prison term of three to 15 years and a fine of up to $10,000.
"Under the Trigger Act, the patient is not subject to criminal prosecution - only the providers and people who assist the provider in performing the abortion," said Wallace Dietz, the law director for Metro Nashville, who spoke Thursday during a livestreamed forum co-hosted by Nashville Mayor John Cooper and Planned Parenthood.
While anti-abortion laws exist across the United States, Dietz said Tennessee is one of the few states that does not recognize an exception for the life of the patient.
"There is, instead, a criminal defense that a health care provider can utilize at a criminal trial - after they have been indicted, prosecuted for the act of criminal abortion," he said.
A licensed physician can establish a defense to the crime by proving 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," according to the law, which does not define "serious risk of substantial and irreversible impairment of a major bodily function."
The law states that a pregnant person's mental health cannot justify an abortion.
Dietz said the law will put medical providers in a confusing, difficult situation.
"A medical provider faced with a very sick patient who has an urgent medical condition has to weigh the risk of providing medically necessary care against the risk of being prosecuted for a crime that could put them in jail for three to 15 years," he said.
Another complicating factor is how the law defines pregnancy as the condition of "a living unborn child within [a woman's] body," because there are cases when pregnancies occur within the body but outside the uterus - a condition called ectopic pregnancy.
Fertilized eggs can't survive outside the uterus, and ectopic pregnancy is a life-threatening - sometimes emergent - condition. But according to the law, any abortion is considered a felony, although a physician would then have an affirmative defense if charged because ectopic pregnancies are not viable and typically fatal if untreated.
Although the Trigger Act does not subject the patient to criminal conviction or penalty, Briana Perry, co-executive director of Healthy and Free Tennessee, said in a phone interview that there are past cases where Tennessee women were prosecuted for self-managing their abortions based on a longstanding law that says "attempt to procure a criminal miscarriage" is a felony.
Even before the trigger law, it was illegal in Tennessee to order or receive abortion pills by mail from an out-of-state pharmacy. It's also illegal to use telehealth to accession abortion medication.
The consensus among the lawyer and physician panelists who spoke at Thursday's forum was that the trigger law is vague, so it's hard to know what scenarios will and won't be prosecuted.
According to the law, licensed physicians are the only ones who have an affirmative defense, so it's conceivable that anyone who self-manages abortions could be held liable, panelists said.
So what is legal in Tennessee?
It is not against the law for a person from Tennessee to go to another state where abortion is legal, obtain an abortion there and then return to Tennessee.
Dietz said that person may travel to another state pharmacy and get abortion pills, but they must complete the regime while they're in that state.
"If they bring some of the pills back to finish the course of treatment with the pills, and they do that in Tennessee, that's a violation of the law," he said.
Dr. Ellen Clayton, a law professor and pediatrician at Vanderbilt University, who spoke at Thursday's forum, said a miscarriage is not defined as an abortion under the law.
"So providing care to women who have miscarriages is something that the law actually permits," she said.
Dr. Katrina Green, an emergency medicine physician from Middle Tennessee, said there's no way for a provider to tell the difference between a miscarriage and a self-induced medication abortion.
"So maybe you don't mention that," she said. "While all of us up here would not report someone for self-induced abortion, there are providers out there who would."
Clayton also recommends not sharing actions related to abortion on social media and to be wary about internet searches.
"We live in a surveillance society, we do. And in an environment where women are going to be punished for making these kinds of decisions. You have to be smart," she said.
Most importantly, Green said, people who are experiencing a medical emergency should never hesitate to seek care.
"We are mandated by federal law to treat any pregnant person who comes to the emergency department, no matter what the law is in the state," she said. "If you're pregnant, and you're having an issue, please come to the ER. Don't wait."
Contact Elizabeth Fite at firstname.lastname@example.org or 423-757-6673. Follow her on Twitter @ecfite.