Tennessee GOP lawmaker: Abortion law likely to need 'fine tune' to address physicians' concerns

Chairman Rusty Crowe, R- Johnson City, presides over a Senate Health Committee meeting Feb. 4, 2015, in Nashville about Gov. Bill Haslam's proposal to extend health coverage to 280,000 low-income residents. To the right are Sens. Becky Duncan Massey, R-Knoxville, and Jeff Yarbro, D-Nashville. (AP Photo/Erik Schelzig)

NASHVILLE - A top Tennessee lawmaker says the General Assembly may need to revisit and "fine tune" the state's near-total ban on abortions amid concerns voiced by doctors that they are at legal risk of being charged criminally and having to defend themselves even when acting to save the life of the pregnant woman or preventing irreversible harm to her.

Senate Health and General Welfare Committee Chairman Rusty Crowe, R-Johnson City, raised the issue last week during a joint meeting of the House and Senate Government Operations Subcommittee on Education, Health and General Welfare.

"I think there are some groups getting together now to look at it in a very prudent way, just to make sure we don't get our docs in a situation wherein they think they're doing the right thing and possibly they're not," Crowe said, citing the Tennessee Medical Association, which represents physicians, as well as individual doctors, hospitals and other providers among those voicing concerns.

"So," Crowe told legislative colleagues, "there will be some fine-tuning, as we normally do with different bills. But I think we all know what the intent Tennessee has with that bill, but let's make sure we do it in a way that we don't get some of our docs in trouble."

Under the 2019 law, called the Tennessee Human Life Protection Act, a licensed physician could be criminally charged for performing any abortion after fertilization, even if it was intended to save the life of the woman or to prevent irreversible harm. A woman's mental health cannot be taken into account. The woman cannot be charged.

If charged, a physician would be required to prove by a "preponderance" of evidence that the procedure was necessary to prevent the death or serious risk and irreversible impairment of a major bodily function of the pregnant woman. That is known as an "affirmative defense," or shifting the burden of proof to the doctor to prove he acted within the law, as opposed to a prosecutor having to prove he violated it.

Physicians who are convicted face prison terms of three to 15 years. The law is expected to take effect sometime in August after the Tennessee Code Commission acts following formal notification of the U.S. Supreme Court's ruling that overturned the 1973 Roe v. Wade decision, which had made abortion legal across the country.

The U.S. Supreme Court on June 24 overturned Roe in a 6-3 ruling in the Dobbs v. Jackson Women's Health Organization case.

Some providers have already raised public concerns about the Tennessee law.

Nashville emergency physician Katrina Green at a June news conference said emergency physicians such as 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 exception about the life of the mother 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, in which the fertilized egg implants itself outside a woman's uterus.

"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."

Crowe acknowledged such concerns last week, questioning if a physican faces charges "if you're taking action medically to help the young lady or the mother in that regard."

A lobbyist for the Tennessee Medical Association did not respond to a Chattanooga Times Free Press request for elaboration about physicians' concerns.

State Rep. Mike Stewart, a Nashville Democrat and attorney, in June called Tennessee's abortion law extremely problematic for doctors.

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

Stewart warmed "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."

House Government Affairs Committee Chairman John Ragan, R-Oak Ridge, told reporters in June that he believes those 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," Ragan 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.

He said "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."

Prior to Crowe's comments at Wednesday's joint Government Operations Committee hearing, Ragan asked Dr. Melanie Blake, a Chattanooga internal medicine specialist who is president of the state Board of Medical Examiners, about the trigger law. He asked Blake if officials anticipate a need for any additional rules, citing the Supreme Court's ruling striking down abortion as a constitutional right, leaving the issue to states.

"That trigger law is Tennessee's law, which says that abortion is going to be severely restricted in our state. Hence the question, do you anticipate the need for any additional rules or legislation?" Crowe said.

She replied, "We have appropriate rules governing medical ethics as well as malpractice and negligence and other issues. With respect to criminal convictions that come before us, those are handled just on the degree of the crime, so those already exist.

"I don't anticipate needing new rules regarding that, but I would certainly defer to our legal counsel if they thought that that was necessary, if there are limitations in the current rules," she added.

Chairman Crowe said in a Chattanooga Times Free Press interview Friday that he understands the medical association and at least some of the state's obstetrician-gynecologists and emergency room physicians are looking at the criminal provisions "just to see if it needs fine-tuning.

"Evidently they have an informal group right now, but they're about to put a group together to look at it and see where it needs to go. That's all I know. I just wanted [committee members] to make sure that when that came up the other day that people knew that it looks like we need to take a look at it so we know where we are."

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