NASHVILLE -- A Tennessee law banning nearly all abortions takes effect Thursday after 50 years of advocacy by opponents of the procedure and a two-month wait for the ban to take effect after a U.S. Supreme Court ruling.
The law, which Republican Gov. Bill Lee successfully pressed in 2019 with GOP majority lawmakers, makes no exceptions for rape or incest.
Tennessee Right to Life President Stacy Dunn said in a statement Wednesday that Thursday is "a day innocent lives will be protected."
Passage of Lee's Life Protection Act three years ago put the state in a position to accept the responsibility of "protecting and defending our most vulnerable citizens" in anticipation of the U.S. Supreme Court overturning the landmark 1973 Roe v. Wade decision that made abortion legal nationwide, Dunn said.
The Supreme Court in June struck down Roe 6-3 in a case called Dobbs v. Jackson, which put authority over abortion laws in the hands of states.
"The right to life is the most fundamental right of any human being," Dunn said. "To protect that right for our unborn children is a responsibility that we take seriously. Tennesseans should be proud of what our state has accomplished for our most vulnerable citizens."
Critics warn the state's Life Protection Act may endanger the lives of some pregnant women because physicians will balk at performing the procedure -- even in life-threatening cases permissible under the law -- because they can still be charged with a felony and face defending themselves in court.
"When Tennessee's 'trigger law' takes effect, our state will have a total abortion ban with no exception," Ashley Coffield, president and CEO of Planned Parenthood of Tennessee and North Mississippi told reporters Wednesday during a conference call. "This law puts the burden on the physician to prove the abortion was medically necessary to save a patient's life, rather than on the state.
"This means there really are no exceptions," Coffield said. "The law will make doctors second guess their medical training and expertise when choosing a treatment plan or risk a felony for criminal conviction. ... Now, lawyers and hospital administrators will be weighing in on life or death scenarios.
"Two months after Roe's fall, one out of three American women have lost access to control their own bodies," Coffield said. "Politicians in Tennessee intentionally created this climate of chaos, confusion and devastation for people who become pregnant."
The Tennessee law makes an abortion illegal in all circumstances. But it allows a physician to present an "affirmative" defense that the abortion was necessary in order to prevent death or irreparable harm to the woman.
Angela Madden, Tennessee Right to Life's vice president, said in a phone interview Wednesday that "the law provides for an affirmative defense, that a physician in his or her best-faith medical judgment based on the facts that they know, that if the abortion if necessary to prevent the death of the mother or serious risk of bodily harm, then that abortion can be performed."
Madden said Ohio has had an affirmative defense provision since 2011. During that time, 70 abortions were performed.
"And no doctor's been charged or prosecuted," Madden said. "So we don't believe that doctors should be fearful if they are performing abortions to save the life of the mother or to prevent serious, irreversible impairment."
But Madden said elective abortions are another matter.
"I think the law provides for treatment of dangerous maternal health issues," Lee said speaking to reporters earlier this week in Lebanon, The Tennessean reported. "The doctor will make their best judgment for that danger to the mother, and that exists in the law now.
"I think what we need to make sure is that there is an ability for a doctor to perform in the case of a dangerous maternal health situation," Lee said. "My sense and understanding from the law is that does exist now."
On Wednesday, Nashville attorney Rachel C. Welty attended a news conference where state Sen. Heidi Campbell, a Nashville Democrat running for Congress in the 5th Congressional District, and others spoke out against the law taking effect Thursday.
"I think what you're going to find, unfortunately, is doctors wanting to protect themselves from litigation," Welty said in an interview. "My hope would be that all doctors say, 'We don't care, we're going to do whatever we can' to protect their patient. But I don't know if those providers working under big hospitals or things like that will have the ability to do that."
Asked whether she thought physicians could wind up facing charges from district attorneys, Welty said they could.
"Luckily, we have some DAs across the state who have said they are not going to charge," Welty said. "The problem is we have a new state law that says the (state attorney general) can substitute himself for a district attorney that isn't prosecuting."
Also attending the event on Legislative Plaza was Jason Martin, a Democrat and Nashville physician who is Lee's opponent in the November election.
"I don't think government should be using its heavy hand in the doctor's office when a woman or physician and her family and her God are trying to make decisions about her body," Martin told the Chattanooga Times Free Press.
"Abortion restrictions don't stop abortions, they just stop the safe ones," Martin said. "Abortion restrictions don't stop restrictions for everybody, just the people who can't afford to travel to another state to get that service. I think these laws have a disproportionate impact on the neediest among us."
Tennessee, Georgia and Alabama had laws ready to go in the event Roe was overturned or substantially changed.
In 2014, Tennessee voters approved a change in the state constitution stating nothing in the Tennessee Constitution "secures or protects a right to abortion or requires the funding of an abortion." It also states the legislature has the power to pass laws regulating abortion. It passed with 53% of the vote.
Tennessee's law prohibits abortion after fertilization except in cases in which 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 that carries a prison term of three to 15 years and a fine of up to $10,000.
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.
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 access abortion medication.
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, but the entire process must be completed out-of-state.
Georgia law, which was signed by Gov. Brian Kemp in 2019 and went into effect in July, bans abortion in most cases once fetal cardiac activity is detected -- typically about six weeks into a pregnancy and before a woman knows she's pregnant.
There are exceptions:
-- Abortion is allowed up to 22 weeks in cases of rape or incest if a police report has been filed.
-- Abortion is allowed after 22 weeks if the fetus has congenital or chromosomal defects that make it unviable.
-- Abortion is allowed when a woman's life is in danger.
Georgia's law includes "personhood provisions" for an embryo once fetal cardiac activity can be detected, and child support/tax filings are allowed after heartbeat detection.
It is unlawful for an abortion to be performed unless it is deemed absolutely necessary in order to prevent a serious health risk to the woman. There are no exceptions for rape or incest.
Contact Andy Sher at firstname.lastname@example.org. Follow him on Twitter @AndySher1.
Elizabeth Fite contributed to this story. Contact her at email@example.com or 423-757-6673. Follow her on Twitter @ecfite.