State Rep. Hakeem plans bill to eliminate portions of Tennessee’s abortion law

Staff Photo by Olivia Ross / State Rep. Yusuf Hakeem speaks Oct. 6 at Lookout Valley Middle/High School. Hakeem said he plans on sponsoring a bill next year that would make changes to Tennessee's abortion law.

NASHVILLE -- State Rep. Yusuf Hakeem, D-Chattanooga, said he plans to mount a legislative effort to eliminate provisions in Tennessee's abortion law that put physicians at risk of being charged criminally for performing the procedure even in cases involving rape, incest or to protect the health or life of the mother.

"I guess one of the factors that made me want to look at this was this woman in Chattanooga who had to be carried to North Carolina by ambulance for six hours," Hakeem said by phone Tuesday of a well-publicized case involving a woman whose obstetrician, a specialist in high-risk pregnancies, advised her patient to seek potentially life-saving care there.

"She had some kidney damage as a result of having to be transported that far," Hakeem said, citing the incident first reported by The Wall Street Journal. "You know, the life of the mother I think is very important, and that's what brought this (legislative effort) on."

The lawmaker added he is also motivated by discussions he had with the Chattanooga and Hamilton County Medical Society, noting physicians told him the law is putting a chill on potential OB-GYN physicians coming to the community.

"Those who are in the profession are considering backing out of it because, how do I say it, because ... the interpretation they received is you're guilty until you're proven innocent," Hakeem said.

Tennessee's "trigger" abortion law, titled the Human Life Protection Act, was passed in 2019 in anticipation of the U.S. Supreme Court overturning its landmark 1973 decision in Roe v. Wade.

That decades-old decision established a national right for women to seek an abortion. After chipping away at some provisions in the following decades, Supreme Court justices in June overturned the Roe decision in its entirety, ruling in a 6-3 decision.

That enabled the Tennessee law and other states' laws with other restrictions to take effect, drawing fire from critics.

Tennessee's law doesn't specify an exception for lifesaving care of a mother. It does provide an affirmative medical defense for medical professionals who have been charged with the state's felony of criminal abortion. Conviction carries penalties of up to 15 years imprisonment and up to $10,000 in fines.

If charged -- so far, no known cases have been filed by local prosecutors -- a physician can mount a defense, although the burden of proof is on them instead of prosecutors.

Doctors would have to prove by a preponderance of evidence that 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.

The law excludes mental health as a medical risk that can be taken into account.

Lt. Gov. Randy McNally, R-Oak Ridge, the state Senate speaker, said in a statement Tuesday to the Chattanooga Times Free Press that he thinks the law is fine.

"Doctors are currently protected by the affirmative defense exception while performing medically necessary or life-saving care to women," he said. "Purely elective abortions remain the target of this law.

"Many of those driving the narrative that this is not a true exception or that medically necessary care is outlawed are opposed to the law in its totality," McNally said. "After their imagined flaws in our law are 'fixed,' they will continue to attempt to pick apart the law until there is nothing left.

"While I am open to ensuring that the law operates as intended, I will not participate in the incremental dismantling of the law," he said.

Regarding the issue of rape, McNally said he is "very sensitive to the tension between the human life of the unborn and the clear violation of human dignity in the heinous crime of rape."

The speaker said that is why he opposes restrictions on contraception and has voted to make access easier.

"Emergency contraception is effective in preventing pregnancy for up to 72 hours after unprotected sex," said McNally, a retired pharmacist. "Access to the pill is available over the counter in Tennessee and is also routinely administered to those reporting rape at the hospital and to the police."

Effective use can substantially reduce the number of pregnancies resulting from rape, he said.

"This is the most philosophically consistent and humane way to prevent pregnancies in these cases," McNally said. "However, I will carefully consider the bills filed on this subject as they make their way through the committee system and make a determination before they arrive on the Senate floor."

Some GOP lawmakers are uncomfortable amid rising concerns.

State Sen. Richard Briggs, a Republican heart surgeon from Knoxville, is among GOP members raising concerns about the law, telling ProPublica in a recent story that while he voted yes on the trigger law in 2019, he never thought it would actually take effect.

"Here, the defendant is guilty until he can prove that he's not guilty," Briggs said. "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?"

Briggs said he wants language offering clear exceptions for rape, incest, severe fetal anomalies and cases in which the pregnant patient's life or health are at risk.

State Sen. Heidi Campbell, D-Nashville, who opposed the trigger law, said in an interview Tuesday in her office that she had been aware of the criminal provisions.

"Not only that, it's been made evident that other people were made aware of that, too," Campbell said. "So I think the argument that people didn't know what they were getting into is disingenuous at best."

Campbell said she's planning an entire package of bills that ranges from the "idiosyncratic to the complete codification of Roe.

"We don't have any fantasies that we're going to do well with it," said Campbell, alluding to the fact that Senate Republicans control 27 of the chamber's 33 seats. "So yes, of course, we'd sign onto anything that makes prospects better for women and doctors."

State Sen. Mark Pody, R-Lebanon, a longtime proponent of abortion restrictions, said in a Tuesday interview in his legislative office, "I would not be interested in a rape or incest exception."

Pody said he might be open to "some language that we could get for the mother to address issues I've heard about here or there. But overall, the bill the way it's written, I was comfortable with and am even more that way" now.

Pody said he's hearing different things from his GOP colleagues.

"There's a lot of people that would think they want to tweak it a little bit. It's going to be, I think, how the bill is going to be worded is how it's going to go."

Contact Andy Sher at Follow him on Twitter @AndySher1.