State asks judge to lift injunction on Tennessee’s heartbeat abortion law

Attorneys for the state are asking a federal judge to set aside a preliminary injunction barring a “heartbeat” abortion law from taking in effect.

In a Friday legal filing, state attorneys notified U.S. District Judge William Campbell they plan to appeal his July 24 order temporarily halting Tennessee’ controversial abortion law from being enforced. They also asked Campbell to lift his injunction while the appeal moves forward.

The law, backed by Gov. Bill Lee, bans most abortion after the point a fetal heartbeat can be detected, or about six weeks into a pregnancy – a point before a woman may knows she is pregnant.

The measure, one of the most restrictive abortion laws in the nation, also makes it a crime for doctors to “perform or induce, or attempt to perform or induce, an abortion upon a pregnant woman whose unborn child has a fetal heartbeat.”

It also bans physicians from performing the procedure if the doctor knows the woman is seeking an abortion because of the age, sex, race or disability (such as Down syndrome) of the fetus, with criminal penalties for those who do.

The measure provides exceptions to the restrictions if a woman’s life is in danger. There are no exceptions for rape or incest.

In signing the bill into law on July 13, Gov. Bill Lee called it “arguably the most conservative, pro-life piece of legislation in the country.”

Attorneys for the state’s abortion providers, including Planned Parenthood of Tennessee and North Mississippi, the Memphis Center for Reproductive Health, the Knoxville Center for Reproductive Health and Carafem, filed suit in federal court within an hour of the governor’s signature arguing the law violates Roe v. Wade and other U.S. Supreme Court precedent. They also argued that a portion of the statute that set out appropriate defenses for healthcare providers accused of violating the law was “unconstitutionally vague.”

Judge Campbell agreed and issued a preliminary injunction barring the law from taking effect, saying the abortion providers had shown they would likely succeed in providing that the law “violates long-standing Supreme Court precedent prohibiting bans on pre-viability abortions that this Court is bound to follow.”

State lawyers argued in their filing that the abortion law is not unconstitutional since women in Tennessee remain free to seek abortions before a fetal heartbeat is detected.  Nearly half of all abortions in Tennessee occur before 8-weeks of gestational age and 86% occur before 12 weeks, their filing said.

“The gestational-age provisions do not ‘ban’ pre-viability abortions because women would remain able to make the decision to abort -and to actually receive an abortion – before applicable limits,” they wrote.

In his original ruling, Campbell also concluded a portion of the law requiring physicians to be ‘aware of’ the intent of a woman seeking an abortion – to know, for example, if it was based on the sex or general of the fetus she is carrying — was problematic, Campbell concluded.

In asking the judge to reverse himself, state lawyers argued the judge had committed “legal error” in that regard.

“Criminal liability often turns on what the defendant knew about the mental state of another person,” attorneys wrote.

State attorneys also took issue with Campbell’s conclusion that the law was vague about what constitutes a physician’s judgement about proceeding with an abortion in an emergency in which the woman’s life was at risk.

Even if the law is too vague, they argued that the preliminary injunction wasn’t warranted. Instead the court could have stopped that portion of the law from taking effect while the case continued, they said.