Tennessee’s full abortion ban goes into effect today, prohibiting abortions from the moment of fertilization with no exception for rape, incest or medical emergencies.
Doctors found to have performed an abortion will now be subject to criminal prosecution, with penalties of up to 15 years in prison and a $10,000 fine. Pregnant women will not face criminal charges.
Instead of a “life of the mother” exception to the abortion ban — which several state lawmakers advocating for the bill claimed was included when it passed in 2019 — there’s a legal defense for doctors who perform life-saving procedures. That defense may be used in court after a doctor has been arrested and charged with criminal abortion.
Ashley Cofield, CEO of Planned Parenthood of Tennessee and Mississippi, said Wednesday the law will bring lawyers and hospital administrators to weigh in on medical decisions involving life and death — and patients are scared.
“This law puts the burden on the physician to prove the abortion was medically necessary to save a patient’s life rather than on the state,” Cofield said during a news conference. “The law will make doctors second-guess their medical training and expertise when choosing a treatment plan — or risk a felony criminal conviction.”
Tennessee’s trigger law was set into motion in June, when the U.S. Supreme Court overturned Roe v. Wade. Within days, a court allowed the state’s “heartbeat law” to take effect, banning abortions after fetal cardiac activity can be detected, about six weeks into pregnancy.
The trigger law, known as the Human Life Protection Act, passed in 2019, bans the use of any “instrument, medicine, drug, other substance or device with intent to terminate the pregnancy of a woman who is known to be pregnant with intent other than to increase the probability of a live birth.”
A pregnancy, according to the new law, begins at fertilization.
Doctors face legal pressure
Doctors are already feeling legal pressure. Vanderbilt University Medical Center has been instituting policy changes since June to mitigate health equity concerns anticipated under the new law, according to a news release.
“I’ve already had circumstances where I had to leave the room and say, ‘I’ve got to call my liability carrier and find out what’s acceptable for me to tell you,'” Dr. Carolyn Thompson, a physician executive and adviser at Ascension Saint Thomas Hospital Midtown, said during a panel on the new law earlier this month.
Katie Dietrich, a spokesperson for HCA Healthcare’s TriStar Division said they will support physicians’ “independent medical judgment to assess patients’ needs to determine the course of treatment” while remaining in compliance with state and federal law.
“This is a uniquely complex situation, and it will take time to assess the full effect it will have on health care providers,” Dietrich said.
Planned Parenthood stopped providing abortions on June 27 in accordance with the new state laws. The organization offers counseling to women in need and provides gas cards and hotel vouchers to women seeking to travel out of state for an abortion. Contraceptive care, including emergency contraception, remains available at Planned Parenthood.
“We don’t have an agenda when it comes to your care,” Cofield said. “We trust our patients to decide the course of their own lives.”
Crossing state lines to obtain an abortion remains legal. The closest states where abortion remains legal and relatively accessible are Illinois and Virginia.
Effects on contraception unknown
The new law is silent on contraception and will likely not have any impact on the availability of contraceptives in Tennessee. But because of the way the new law defines a pregnancy — from the moment of fertilization — questions have arisen about whether certain types of birth control, like intrauterine devices (IUDs) that prevent implantation in the uterine wall, will be impacted.
“We are very concerned about contraception,” Cofield said. “Emergency contraception and IUDs are not abortion. They don’t operate the same way, but you know, it’s the enforcement of this law — how it’s interpreted, how it’s put into effect in Tennessee — is all left to be seen.”
Republican lawmakers have emphasized the law defines abortion to be only when a woman is “known to be pregnant,” clarifying that contraceptives are not covered under the ban.
“It was not the legislative intent for the trigger law to affect contraception at all,” said Adam Kleinheider, a spokesman for Lt. Gov. Randy McNally. "Lt. Governor McNally does not believe the law will affect any form of contraception whatsoever and should not be enforced that way.”
Kleinheider said if any further clarification is necessary, “that can be accomplished in January,” when the legislature returns for the upcoming session.
Gov. Bill Lee’s office indicated the law should not have any impact on contraception.
“We are focused on implementing Tennessee’s law and are not currently discussing any proposals related to contraception,” said Jade Byers, a spokesperson for Lee.
Doctors demonstrate
A group of high profile democrats and medical doctors held a news conference Wednesday on Legislative Plaza to show support to women and doctors who will be impacted under the new law.
“This is an attack on privacy, and as a physician, I know women will suffer the consequences,” said Dr. Jason Martin, the democratic nominee for governor challenging Lee in November.
Dr. Amy Gordon Bono, an internist at TriStar Summit Medical Center, said laws surrounding abortion in Tennessee will make it more difficult to train new physicians and could repel existing physicians from practicing in the state.
“Some physicians will choose to avoid practicing medicine in Tennessee due to its harsh legal environment that needs to be tested with case law before anyone knows how to really handle things,” Gordon Bono said.
A group of physicians and health care workers were planning to hold a “Healthcare in Handcuffs” protest at the Justice A.A. Birch Building downtown on Thursday at 11 a.m.
