Tennessee Right to Life opens door to ‘life of mother’ exception in abortion ban

Criminalization of efforts to save pregnant women has been an issue for physicians

Staff photo by Matt Hamilton / Marchers cross the Walnut Street Bridge during the "March for Life" against abortion sponsored by Greater Chattanooga Right to Life and Students for Life on Saturday, January 28, 2023.
Staff photo by Matt Hamilton / Marchers cross the Walnut Street Bridge during the "March for Life" against abortion sponsored by Greater Chattanooga Right to Life and Students for Life on Saturday, January 28, 2023.

NASHVILLE — Tennessee Right to Life officials said Monday they are backing proposed narrow exceptions to the state's total abortion ban.

The exemptions are aimed at better protecting physicians from criminal prosecution if they are acting to save the life of the mother.

Tennessee Right to Life's statement marks the first time the anti-abortion group has voiced support for any amendment to Tennessee's law, which took effect Aug. 25 after the U.S. Supreme Court in June opened the door for states to ban the procedure.

The law has been problematic for physicians because it provides no exception to perform an abortion to save a woman's life -- instead allowing doctors to put up an "affirmative defense" if charged with the crime of abortion. In such a defense, the burden of proof rests with the doctor to prove the procedure was justified, not on prosecutors to prove it was not.

Doctors can face a Class C felony, punishable by 3-15 years in jail and fines of up to $10,000 for violations under the current law.

New proposed Senate language, which Tennessee Right to Life says it has agreed to, states a person who performs or attempts to perform an abortion does not commit the offense of criminal abortion if the abortion is performed or attempted by a licensed physician in a licensed hospital or ambulatory surgical treatment center and the following conditions are met:

-- The physician determined, using "reasonable medical judgment" based on what he or she knew at the time, that the abortion was necessary to prevent the death of the pregnant woman or prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

-- The physician performs or attempts to perform the abortion based upon his or her best medical judgment and facts known to the physician at the time which provides the best opportunity for the child to survive unless it would pose a greater risk to the pregnant woman.

(READ MORE: Women sue Texas over abortion ban, say it risked their lives)

"We have maintained throughout this session that we would work with legislators to clarify the Human Life Protection Act without weakening it, and that is what this amendment does," the anti-abortion group said in a statement. "It would explicitly clarify that treatments of ectopic pregnancy and miscarriages are in no way considered criminal abortions under the Human Life Protection Act, and it would change the affirmative defense to an exception for those times when the mother's life is in danger."

The measure, Senate Bill 983, is sponsored by Sen. Ken Yager, R-Kingston. Rep. Esther Helton-Haynes, R-East Ridge, is the sponsor of the House companion measure, House Bill 778. The Senate bill was scheduled to come up in the Senate Judiciary Committee on Monday but was delayed as members heard other bills.

Helton-Haynes is also sponsoring a separate measure, House Bill 833, which is being carried in the Senate by Sen. Richard Briggs, R-Knoxville, a physician. She said in a brief text Monday that the bill has broader exceptions than the Yager bill but did not specify them. Tennessee Right to Life has opposed it.

The Senate bill has other changes which differ from the House's approach. The Senate sets a "reasonable judgment" standard for a physician deciding whether an abortion is necessary. The House has "good-faith judgment," a less rigorous legal definition.

House Speaker Cameron Sexton, R-Crossville, weighed in Monday.

(READ MORE: Speaker seeks firmer legal ground for Tennessee abortion ban)

"I am happy that the Right to Life has finally determined that the House was correct in addressing the life of the mother," Sexton said in a phone interview with the Times Free Press.

Sexton said, however, that he intends to insert the Yager bill language into Helton-Haynes' bill with Briggs when it comes up in full House Health Committee on Wednesday.

The current law has already led to complications, including a case in Chattanooga in which a woman's physician said she feared performing a necessary abortion and had the patient take a six-hour ambulance ride to North Carolina where the procedure was legal.

(READ MORE: East Ridge state rep puts 'affirmative defense' abortion bill on hold)

Last month, Right to Life lobbyist Will Brewer angered Sexton and others when he argued against most changes proposed at that time for the law and made what Sexton and others saw as an overt political threat.

"I would not consider this a pro-life law. And in discussions with our (political action committee), they have informed me that they would score this negatively," Brewer had warned.

That comment brought Sexton from his sixth floor office down to the subcommittee where he chastised Brewer.

Unlike the new bill supported by the Tennessee Right to Life, Helton-Haynes' other measure (House Bill 883) includes exceptions that would allow a physician to terminate "medically futile" pregnancies, to dispose of an unimplanted fertilized egg and to address a lethal fetal anomaly. It also has provisions allowing abortions to remove ectopic or molar pregnancies.

Medically futile pregnancies and lethal fetal anomalies are situations in which an unborn child is not expected to survive outside the womb despite medical intervention.

"Senate Bill 983 as amended is a win/win -- it clarifies Tennessee law but doesn't weaken it," said Tennessee Right to Life President Stacy Dunn in an email to the Times Free Press on Monday. "Members of the medical community demanded clarification in the law, and that is what the amended SB983 offers."

Dunn said The Human Life Protection Act is working as intended and is saving an estimated 900 children from abortion in Tennessee each month. She said the legislation will provide additional clarity.

"HB883 on the other hand would delete major sections of Tennessee law that were passed in order to save women and children from the abortion industry," Dunn continued. "Furthermore, the language of HB883 is vague and open to interpretation by those physicians who abort unborn children. HB883 is supported by abortion activists because it is not pro-life legislation."

One of the Tennessee Medical Association's top legislative priorities is addressing physician concerns with the state's abortion law. A record number of physicians and health care advocates, more than 300, came to Nashville last week for the association's "Day on the Hill," where participants received a presentation from Helton-Haynes regarding HB 883.

Contact Elizabeth Fite at efite@timesfreepress.com or 423-757-6673. Contact Andy Sher at asher@timesfreepress.com.

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