Critics: Tennessee abortion law could spur criminal charges against doctors even if performed to save mother's life

Sen. Mark Pody, R-Lebanon, talks with people attending a Senate hearing to discuss a fetal heartbeat abortion ban, or possibly something more restrictive in 2019, in Nashville. (AP Photo/Mark Humphrey)

NASHVILLE - Critics say a Tennessee anti-abortion law expected to take effect in August that outlaws almost all abortions will still put physicians performing the few legally permissible abortions at risk of having to defend themselves in court against criminal prosecution even if they acted to save the life of the mother.

And that, they warn, will have a chilling effect on doctors.

The 2019 "trigger" law, known as the Tennessee Human Life Protection Act, was approved by state lawmakers and signed into law by Republican Gov. Bill Lee. It was designed to take effect if the U.S. Supreme Court ever overturned the landmark 1973 Roe v. Wade decision that established nationwide a woman's right to an abortion.

That happened June 24 in a 6-3 decision as the nation's Republican-dominated high court set aside nearly a half-century of decisions and precedent in an opinion overturning Roe v. Wade.

The Tennessee law will take effect 30 days after the U.S. Supreme Court's official issuance of its judgment. Tennessee Attorney General Herbert Slatery's office said in a statement to the Chattanooga Times Free Press that officials expect that to occur in mid-July, with Tennessee's near-total ban then taking effect sometime in mid-August.

Once it does, doctors who are charged under the new law could face prison sentences of three to 15 years.

That's because Tennessee's law further says anyone who performs or attempts to perform an abortion commits the felony offense of criminal abortion. That applies even in cases involving saving the life of a mother.

Any doctor charged under the law would have to mount an "affirmative" defense, meaning they would have to hire an attorney to present a fact or facts to counter any allegations by prosecutors that they had acted illegally - all of which must be proven by a preponderance of the evidence, the law says.

The facts are to include that the abortion was performed or attempted to be performed by a licensed physician who determined in his or her good-faith medical judgment based on facts known to the physician at the time that the procedure was necessary to prevent the death of the pregnant woman.

The law excludes abortions based on a "claim or diagnosis" that the woman would engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function or for any reason related to her mental health.

The trigger law comes on top of another law already in effect as a result of the June 24 Supreme Court decision. That 2020 law bans abortions six weeks into pregnancy, a time when few women realize they're pregnant.

'Chilling effect'

"The problem is it's (the trigger law) got a chilling effect, because the way the law is written it's subsequent to them doing it that they can defend themselves," state Sen. Heidi Campbell, a Nashville Democrat, told reporters Wednesday following a regularly scheduled meeting of the state House and Senate Government Operations Committee. "Implicit in the actual language of the law is that they would be immediately put into a situation where they would have to defend themselves."

That's why Planned Parenthood decided to shut down its abortion services in Tennessee, Campbell said.

Rep. Gloria Johnson, D-Knoxville, who spoke to reporters following the same meeting, agreed.

"The life of a mother is not an exception," she said. "You can use it as a defense."

Rep. Mike Stewart, a Nashville Democrat and attorney, called the law extremely problematic for Tennessee doctors.

"That's the problem with this speedy effort to change all of our laws," Stewart told the Times Free Press following the Government Operations Committee meeting. "You know, a doctor cannot violate statute without putting his or her license at risk."

"But if that's an exception to severe liability, potential criminal sanction, every time a physician is faced with some potential problem - for example, an ectopic pregnancy - the physician's going to have to think extremely carefully before potentially subjecting himself or herself to some district attorney making the discretionary decision to file criminal charges," Stewart said.

A physician's view

Dr. Katrina Green, a Nashville emergency room physician, told reporters last week following the Supreme Court ruling that the new law means emergency physicians like herself will no longer be able to refer patients who need an abortion to a facility where they can obtain one "safely within our state."

The "life of a mother" exception is a "term deliberately vague enough to give many doctors and health care workers pause," Green said. "What does the 'life of the mother' exception really mean? How threatened must someone's life be before we can intervene and help them medically?"

She cited as an example ectopic pregnancies that occur when a fertilized egg implants itself outside the uterus, typically in the fallopian tubes or an ovary, but occasionally it can wind up in other sites in the abdominal cavity.

"I've seen a case report of an ectopic pregnancy in someone's liver," Green noted. "These pregnancies are not viable. Contrary to the belief of some politicians, there is no medical way to salvage them or reimplant them into the uterus. Eventually, an ectopic pregnancy will grow large enough to rupture the organ in which it is growing and cause the patient to hemorrhage."

Republicans' take

State Sen. Mark Pody, R-Lebanon, who backed the bill, told reporters he thought the bill had an exception to prosecution with regard to the life of the mother.

"However," Pody quickly added, "I wouldn't be opposed to that because that way it's not just a whim, that they would have to prove the life of the mother was in danger."

House Government Operations Committee Chairman John Ragan, R-Oak Ridge, said the concerns are overblown.

"There's a saying among lawyers, you can indict a ham sandwich, so I'm certain there probably could be some charges brought," he said. "However, in our system, the disciplinary action against doctors is first taken at the Board of Medical Examiners. So that situation would play out first before any charges unless some egregious circumstances I can't imagine" occur.

While acknowledging Tennessee doesn't require that, Ragan said it is the protocol.

"Most district attorneys that I'm aware of are going to defer to the professional agencies, whether it's a doctor or anything else, to administer discipline as appropriate," Ragan said.

A violation of board rules might result in revocation of license, which is a severe penalty, Ragan said.

"Then the DA has the option of pursuing that criminal prosecution if they so choose," he said.

Ragan also noted he believes that DAs, if they were exercising their fiduciary duties to be fiscally responsible, are not going to cost taxpayers money by initiating a case that could be addressed at a lower cost.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.