Physicians could face abortion charge even if mother’s life is in danger

By: - June 30, 2022 7:01 am
Tennessee Right to Life held a press conference Friday in the Tennessee Capitol. Lawmakers including Rep. Scott Cepicky, R-Culleoka (by Tennessee flag, partially obscured,) Sen. Jack Johnson, R-Franklin, in navy jacket and khaki pants, and at far left, House Majority Leader Williams Lamberth, R-Pprtland. (Photo: John Partipilo)

Tennessee Right to Life held a press conference on June 24 after the U.S. Supreme Court overturned Roe v. Wade. Lawmakers including Rep. Scott Cepicky, R-Culleoka (by Tennessee flag, partially obscured,) Sen. Jack Johnson, R-Franklin, in navy jacket and khaki pants, and left of podium, House Majority Leader Williams Lamberth, R-Portland. (Photo: John Partipilo)

Far from providing an exception to save a mother’s life, the state law outlawing abortion in Tennessee would allow felony charges to be filed against any physician who performs the procedure even if the mother could die or sustain long-term injury.

The legislation passed in 2019, known as a trigger law because it would take effect once Roe v. Wade was overturned, makes criminal abortion a Class C felony. It also requires a physician to make an “affirmative defense” proven by a “preponderance of the evidence” that the mother’s life was in danger when the abortion was performed. 

Critics of the law contend this is not an “exception” to protect the mother, as described by some proponents and spelled out in the bill’s caption. They also point out children as young as 10 could be required to carry a pregnancy to term in cases of rape and incest, neither of which has an exception or an affirmative defense under the law.

The Legislature could have written the bill to say the statute applies only if the abortion is not done to protect the life of the mother. Then, before the state could obtain a warrant or indictment, it would have to prove the mother’s life was not at risk.

Alex Little. (Photo: Submitted)
Former assistant U.S. Attorney Alex Little says Tennessee’s new abortion laws place the onus on physicians to prove the health or life of the mother was at stake when conducting an abortion. (Photo: Submitted)

Nashville attorney Alex Little, a former assistant U.S. attorney, said Wednesday the Legislature put the burden on the doctor to prove performing an abortion was necessary to save the mother’s life.

“And it doesn’t prevent any doctor from being charged with this crime for any abortion, no matter how necessary,” Little said. “Those decisions are going to be left in the hands of individual prosecutors in every judicial district in the state of Tennessee.”

Little noted the Legislature could have written the bill to make it “more protective of mothers with vulnerable health situations,” but lawmakers chose to make it risky, even when the physician believes it’s needed to save the mother.

“We can likely believe that will mean women’s lives will be put at risk unnecessarily,” he said.

The 6th U.S. Circuit Court of Appeals this week vacated a hold on Tennessee’s so-called “fetal heartbeat” law that makes abortions illegal after about six weeks. Doctors have said that such laws are based on misinformation; that at six weeks the embryo isn’t yet a fetus and doesn’t have a heart, that the flicker seen on an ultrasound machine is actually electrical activity, and any sound heard is manufactured by the machine itself. 

Tennessee Attorney General Herbert Slatery said Tuesday he will notify the Tennessee Code Commission that the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey decision in last week’s ruling on Dobbs v. Jackson Women’s Health Organization.

That isn’t expected to happen until mid-July, and 30 days afterward, likely in mid-August, the Tennessee Human Life Protection Act will prohibit abortion after fertilization. Slatery confirmed in his statement this week the law contains an “affirmative defense” to save the mother’s life or to prevent irreversible impairment of a major bodily function.

Sen. Mark Pody, a Lebanon Republican who voted for the measure in 2019, said Wednesday he understood there was “an exception” for the life of the mother.

“I thought that was an exception. However, I wouldn’t be opposed to that. That way, they have to make sure that it’s not just a whim, that they have to prove the life of the mother was in danger,” Pody said after a Government Operations Committee meeting at the Cordell Hull Building.

Despite uncertainty about the details, Pody said he believes the Legislature “absolutely” knew what it was voting on when the bill passed three years ago.

“We vote on thousands of pieces of legislation, and I can’t remember the details of every single one. I would vote for as strong of a piece of legislation like that as I could,” he said.

Rep. John Ragan, R-Oak Ridge, predicted Wednesday that disciplinary cases against physicians would be taken before the Tennessee Board of Medical Examiners or the Board of Osteopathic Medical Examiners before going through the criminal court system. The protection act, however, doesn’t mention either of those boards being part of the process.

Several Republican lawmakers, including Senators Paul Rose, Ed Jackson and Mark Body said they were uncertain about how the new law works in cases when the mother’s life is endangered.

Ragan acknowledged such a move would be “protocol” and further said most district attorneys he knows would “defer” to professional agencies. 

Questioned about the “affirmative defense” section of the law Wednesday, state Sen. Paul Rose said he would need an explanation. He noted that Slatery said “misinformation” is being floated about the six-week law and the trigger law.

Rose, R-Covington, and Sen. Ed Jackson, R-Jackson, both of whom voted for the trigger law, said they were uncertain how the law works in cases when the mother’s life is endangered.

“That needs to be clarified,” Rose said.

In contrast, several Democrats who opposed the legislation were well aware of the law’s details when interviewed Wednesday.

State Rep. Vincent Dixie, chairman of the House Democratic Caucus, said he believes Republicans didn’t know whether Roe v. Wade would be overturned so they intentionally set a “low bar” for doctors to be charged.

“It wasn’t about the doctors. It was not about the mothers. It was about weaponizing the Bible in order to legislate,” said Dixie of Nashville.

State Rep. Torrey Harris, a Memphis Democrat who serves on the board of CHOICES – Memphis Center for Reproductive Health, said the group is looking at every angle of the law.

Discussing the potential for criminal charges, Harris said, “The goal is to get as many people into the courtroom as possible to have to fight against something like this.”

It wasn't about the doctors. It was not about the mothers. It was about weaponizing the Bible in order to legislate.

– Rep. Vincent Dixie of Nashville, chair of the House Democratic Caucus

State Sen. Heidi Campbell and Rep. Gloria Johnson pointed out that physicians will be charged because district attorneys general won’t have any option.

Davidson County District Attorney General Glenn Funk has said he will not prosecute physicians who perform abortions. But the Legislature passed a law this year saying the state attorney general can appoint district attorney pro tems to fill in on cases in which a sitting DA refuses to follow state law.

“They established the architecture for this whole thing quite some time ago,” said Campbell, a Nashville Democrat who is seeking the 5th Congressional District seat. “That’s what the trigger law is about. It’s all set up for them to just move in.”

Johnson and Campbell pointed out physicians could face expensive legal battles, and doctors who are averse to risk might consider leaving the medical field.

“They have a real quandary between their Hippocratic Oath and their concerns about the legal ramifications,” Campbell said.

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.