NASHVILLE — Tennessee's strict abortion ban is expected to be re-fought among divided majority Republicans during the General Assembly's upcoming 2023 session with some lawmakers saying it goes too far.
Proposals are emerging to provide exceptions for cases of rape, incest and to save the life of the mother.
The current law makes it a crime for a doctor to perform an abortion to save the life of the mother. Although it allows for the doctor to offer an affirmative defense if charged with the crime of abortion in such a case, the burden of proof would lie with the doctor, not the prosecutor.
The law took effect on Aug. 25 after the U.S. Supreme Court in June overturned its 1973 Roe v. Wade ruling that provided a right to an abortion in most instances.
Senate Republican Caucus Chairman Ken Yager, an attorney, said he is eyeing legislation aimed at eliminating provisions in Tennessee's Human Life Protection Act that now subject doctors to criminal penalties of up to 15 years in prison and $10,000 fines for performing an abortion even if the woman faces life-threatening issues.
"I am currently working on a bill that would strengthen protections for doctors who perform abortions specifically to save the life of the mother or permanent bodily functions by changing the affirmative defense exception to a clear exception when the life of the mother is in clear jeopardy," said Yager, who is not looking to change current abortion bans for rape and incest.
Under Tennessee's "trigger" law, any physician who has been charged can mount an "affirmative defense" argument in court that the abortion was medically necessary to save the woman's life and to "prove" it "by a preponderance of evidence" that the procedure was necessary to save the pregnant patient's life or prevent "irreversible impairment of a major bodily function."
The law also bans all abortions arising from rape or incest and provides no legal avenue for an affirmative defense in those cases.
No prosecutions under the new law have been reported.
While Yager's effort isn't expected to make exceptions for rape and incest, others, including Sen. Richard Briggs, a Republican physician from Knoxville, are eyeing legislation to do just that. Briggs acknowledged to ProPublica earlier this year that he barely read the two-page bill passed in 2019, set to go into effect upon a Roe overturn.
"Here, the defendant is guilty until he can prove that he's not guilty," he told ProPublica. "In my opinion, that is a very bad position to put the doctors in -- why should this doctor have to pay his own legal bills for saving a woman's life?"
The first effort to change the law has already been introduced by Rep. Yusuf Hakeem, D-Chattanooga, for the legislative session that begins Jan. 10.
Hakeem's House Bill 10 specifies that the offense of a criminal abortion would not include a "medical emergency" that affects the physical or mental health of a woman. His bill also eliminates current law provisions allowing prosecutions of doctors who perform abortions for victims of rape or incest.
Hakeem cited to the Chattanooga Times Free Press last month a Chattanooga case in which a local physician felt she had to direct a pregnant woman to North Carolina to address a potentially life-threatening situation.
It resulted in the woman being transported by ambulance to a North Carolina facility some six hours away.
"She had some kidney damage as a result of having to be transported that far," Hakeem said.
The GOP-dominated General Assembly's top two leaders, who are often on the same page on issues, are at odds over this one.
House Speaker Cameron Sexton expressed a willingness to look at exceptions. But Lt. Gov. Randy McNally, the Senate speaker, said he sees no need for action at this time.
Sexton told the Times Free Press by phone this week that "depending on the language, I could be for something like that" with regard to changing the law to recognize issues involving the life or health of a mother, rape and incest.
But Sexton said he believes Hakeem's bill goes too far, saying under the language that "you can go up to birth, there's no limitations." He said a mental health exception in Hakeem's legislation is "very broad as well" and in his view results in a "more abortion on demand" measure.
McNally said earlier this month during an interview in his office that he has no interest in making changes to the law just now.
"I'd like to see how it plays out as written," the speaker said. "I think there's positive defenses, just as a burglar comes into your house and he's armed and you grab your shotgun and you blow him away.
"You have a positive defense against being charged with murder and manslaughter," McNally added. "Now, if it's a 90-year-old person who wanders into your house and unarmed and you go ahead and shoot him, they can charge you."
McNally said, "I think most of the DAs that we have in Tennessee have enough sense to be able to use that judiciously. There are a few that I scratch my head about what they can and would not do. For the most part, most of them would be responsive."
It's up to the district attorneys general, McNally said.
"If it's something obvious, an ectopic pregnancy, there's no argument charging someone," the speaker said, referring to pregnancies in which a fertilized egg, which is supposed to attach to the lining of the uterus, instead implants and grows outside the main cavity of the uterus.
McNally said all the bills -- he expects Briggs to bring one -- will go through the Judiciary Committee and possibly the Health Committee.
"I'm sure Sen. Briggs will get a fair hearing on it," McNally said. "And my preference would be that we not do anything."
He said if the Senate and House do decide to put stronger language into the measure, "I probably would not be in favor of it, but I'm not going to go behind the scenes and try to block that. I have enough trust in members of the Senate and Judiciary (Committee) to do that, to respect what their decisions are."
Republican Gov. Bill Lee, who signed the measure into law, has said he sees no need for any changes, arguing it "does have exceptions for the life of the mother and serious maternal health conditions."
Sen. Todd Gardenhire, R-Chattanooga, said by phone Friday he's not interested in changing the law either in the immediate future.
"I'd just soon as wait and give this a kind of a two or three-year time period" to see if problems arise in the existing law, Gardenhire said. "I kind of like McNally's approach. Let's not rush."
Criticisms of Briggs by groups including Tennessee Right to Life, which pressed the law, have drawn rare, public comments from the Tennessee Medical Association, which represents physicians.
"As written, the law contains no legal exceptions -- not even for the life and health of the mother," said a statement signed by top association leaders. "Sen. Briggs has reasonably indicated he would like to see the law offer clear exceptions when the mother's life or health are at risk, for non-survivable fetal anomalies, and rape and incest."
The association's statement goes on to charge "the affirmative defense in place for physicians caring for affected patients is merely a legal maneuver that undermines the legislative intent of the law. It places doctors in the unconscionable position of having to choose between saving a patient's life or committing a felony.
"Regrettably, this stance has subjected Sen. Briggs to political retribution and attempts to disparage his character," association leaders stated.
Will Brewer, legal counsel for Tennessee Right to Life, said the leaders of the organization's political action committee voted several weeks ago to rescind its endorsement of Briggs.
"The PAC found that it was pretty disingenuous for him to have pledged in his PAC survey earlier in the summer, then pledged in a meeting with us in a meeting with myself and our state President Stacy Dunn that he would work with us in defending this law, the trigger law, and then go on a media tour afterwards to say the opposite."
Brewer said abortion opponents are against making changes to the statute, including the affirmative defense provisions, and are opposed to making any exceptions for cases of rape or incest.
"Now, that's an abstract because I haven't seen any language so far other than Rep. Hakeem's bill," he added.
Brewer said he has not seen proposed language from any of the Republicans as of yet.
Regarding rape, Brewer said, "We believe that is such a traumatic event it deserves to be talked about and certainly debated and done so with empathy. But a life is a life regardless of how it was conceived and we don't want to compound the trauma of rape and incest with the trauma of an abortion. And typically, it's the perpetrator, especially in incest cases, the perpetrator of such a crime is the one to aid and abet the abortion to cover up his crimes."
He said Tennessee Right to Life and other pro-life advocates believe the law is saving lives and treats both the mother and the child with the "dignity that each deserves as human beings and as patients. We think that it needs to stand and breathe."
Contact Andy Sher at firstname.lastname@example.org.