Stockard on the Stump: Republican Congressman questions Tennessee’s abortion ban

October 21, 2022 6:03 am
U.S. Rep. Mark Green, R-Tennessee, is one of hundreds of congresspeople permanently banned from Russia. (Photo: Drew Angerer/Getty Images)

U.S. Rep. Mark Green, R-Tennessee, says Tennessee lawmakers need to rewrite the state’s abortion law. (Photo: Drew Angerer/Getty Images)

Hammered by emergency room physicians about the state’s new abortion restrictions, Congressman Mark Green says the Legislature needs to “clarify” the law’s language to allow doctors to perform surgeries on ectopic pregnancies and similar problems without the threat of arrest.

Those are pretty shocking words just months after the Legislature banned abortions of all kinds. Yet Republican state lawmakers are likely to consider taking action to undo their rush to judgment, and the legislation could affect all sorts or troubled pregnancies.

Though he supports the state’s “trigger” law that banned abortions when Roe v. Wade was overturned, Green, an Ashland City Republican running for re-election against Nashville Democrat Odessa Kelly, says the General Assembly needs to “clean up” the language because it is confusing ER doctors, who are flooding him with calls.

For instance, Green, an emergency room doctor, points out an ectopic pregnancy, which typically takes place outside the uterus in the fallopian tube, will kill the mother if it ruptures.

“So an ectopic pregnancy has to be removed. It’s tragic, but you have to save the mother’s life. That’s one of the best examples I can give as an ER physician where I fully support protecting the life of the mother in that situation,” Green says.

Tennessee’s law doesn’t specify an exception for lifesaving care of a mother but says a physician can defend himself or herself against criminal charges by proving 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.” This means the doctor is charged with a felony for following the Hippocratic oath, then has to go through the ordeal of court and a roll of dice with a jury.

Disagreement: Republican Lt. Gov. Randy McNally says the state’s abortion ban only targets “elective abortions,” although fellow Republican U.S. Rep. Mark Green and state Sen. Richard Briggs says the state’s law needs clarity. “Do you commit a felony or do you lose your license to practice medicine?” asked Briggs. 

Green says he has spoken to Sen. Richard Briggs, R-Knoxville, and Sen. Joey Hensley, R-Hohenwald, both physicians, about changing the law. He says he’s also talked to Tennessee’s district attorneys and adds this caveat, “No one’s planning on charging a doctor for saving a mom from an ectopic pregnancy. None are.”

The law also allows no exceptions for rape or incest, which has drawn heavy criticism from pro-choice groups and political candidates. Now that some folks are having second thoughts, those restrictions might draw new legislation.

But not everybody.

Lt. Gov. Randy McNally responded to Green, a former state senator, with this statement: “While I respect Rep. Green and he is entitled to his opinion, there is a lot of misinformation being transmitted to doctors and hospitals regarding our abortion law. Purely elective abortions remain the target of this law. While I am open to having the clarification conversation, I believe our law currently covers only elective abortions and that doctors already have the protections they need to provide medically necessary care to pregnant women.”

While not quite on the same wavelength as McNally, Kelly accused Green of having an “extreme record” of opposing women’s right to choose.

State Sen. Richard Briggs (Official photo: Tennessee General Assembly)
State Sen. Richard Briggs. (Official photo: Tennessee General Assembly)

In a statement, Kelly said, “As a doctor, Mark Green refused to prescribe birth control because he viewed it as an abortion. As a congressman, Mark Green has supported national abortion bans without any exceptions and voted against codifying Roe v. Wade. I’m a mom who will always fight for a woman’s right to choose. That’s the choice this election.”

Politics aside, Briggs, who is running for re-election, says several senators are discussing legislation to change the law next session.

Under the state’s “affirmative action” defense, Briggs notes the doctor is presumed guilty for treating a woman with a problem such as an ectopic pregnancy and has to prove innocence in court as well as pay for the defense. Doctors also face another dilemma because they are required to meet a standard of care for patients, and that could mean treating different sorts of problematic pregnancies, such as women with ruptured membranes, which would mean performing an abortion.

“Do you commit a felony or do you lose your license to practice medicine? We have to fix it, period,” Briggs says.

Talks are taking place already about problem pregnancies, in addition to cases of rape and incest, according to Briggs, who believes medical conditions surrounding pregnancies should be separated from “elective abortions.”

As a doctor, Mark Green refused to prescribe birth control because he viewed it as an abortion. As a congressman, Mark Green has supported national abortion bans without any exceptions and voted against codifying Roe v. Wade.

– Odessa Kelly, Democratic challenger to U.S. Rep. Mark Green

Legislation also could affect severe congenital anomalies in which the fetus can’t live outside the womb and whether the woman can be forced to carry it to term, especially if she’s had previous complications with pregnancies.

“These are all very tough questions,” he says.

They’re questions most legislators ignored when they passed the “trigger ban.” 

DCS “near collapse”

The Tennessee Department of Children’s Services is struggling. 

Not only are its juvenile justice facilities full, forcing some kids who have gotten into trouble to stay in DCS offices, children who are in foster care are said to be filling up staff offices too.

New Children’s Services Commissioner Margie Quinn told a legislative panel in early October that 11 to 15 youths who’ve been charged with offenses are in DCS offices waiting to be placed in a detention center.

She told the committee some “traumatized” teens are sleeping on floors.

The problem doesn’t end there. 

These kids are in (Gov.) Bill Lee’s custody. He is their daddy right now.

– Rep. Gloria Johnson, D-Knoxville, of a near breakdown at the Department of Children's Services the has left children sleeping on the floors of office buildings.

State Rep. Gloria Johnson and Sen. Heidi Campbell told reporters this week they’ve been talking to DCS staff who say children in foster care are living in their offices because no homes are available, calling the situation “a disaster” and “abusive.”

Johnson, a Knoxville Democrat who faces Republican challenger David “Pozy” Poczobut in a newly-drawn district, says one 5-year-old child has been living in a Knox County office since July.

The children don’t have beds, showers or supplies, except for what staff workers provide with their own money, she says.

“These kids are in (Gov.) Bill Lee’s custody. He is their daddy right now,” Johnson adds.

In grainy still photos cropped from video sent to the Tennessee Lookout by staff at the Tennessee Department of Children's Service, a teen sleeps on the bare floor while another lies on an air mattress with no blanket. (Photo: submitted)
In grainy still photos cropped from video obtained by the Tennessee Lookout, children in state custody sleep on the floor of a state office building. One teen sleeps on the bare floor while another lies on an air mattress with no blanket. The children were in the custody of the Department of Children’s Services (Photo: submitted)

A state staffing shortage – which is said to be the root of the problem – is caused largely by “neglect” of workers, Campbell says. She notes Davidson County has only 11 of 63 positions filled in Child Protective Services.

With billions of dollars in reserves, the state could solve the situation by increasing pay for social workers and hiring more people, the legislators say.

A juvenile judge recently urged lawmakers to throw money at the department. But the governor and lawmakers haven’t gotten that far.

Johnson points out legislation sponsored last session would have capped social worker caseloads at 12. Instead, workers in East Tennessee have 40 to 50 cases, and those in Davidson are struggling with 80 to 90 cases each.

Tennessee just came out from under a federal consent order dealing with a case called Brian A in 2019. At that point, the federal court determined that DCS had met all of the requirements for caring for children in its custody, mainly Black children who weren’t receiving the protection and services they needed before a settlement was reached in 2001.

We wonder how much progress the department really made, though. Tennessee Lookout reported last year that children were sleeping on floors in DCS offices, and it appears some of them are making them a permanent home.

Asked about the situations described by Johnson and Campbell, a spokeswoman for the Governor’s Office was uncertain what they were talking about and referred questions to Commissioner Quin’s presentation to lawmakers earlier this month and the “challenges” the department faces.

Quin, however, was referring mainly to juvenile justice cases in that meeting, saying the department is trying to figure out how to improve the situation and, as with most employers in the nation, is affected by workforce shortages. 

The Governor’s Office contends it has addressed the matter “through consistent pay raises for case workers and will continue to deliver the resources DCS needs to protect children.”

If that’s the case, though, why are kids sleeping in offices?

Janie got a gun

Violent crimes hit new levels in Memphis over the last two years, jumping to 12,128 per 100,000 people in 2021 before dipping to 11,347 for the first nine months of 2022, according to the Memphis Shelby Crime Commission.

Violent incidents involving guns jumped 17 percentage points over a five-year period to more than 5,000 in 2021 and right at 5,000 from January to September this year.

Aggravated assaults involving guns in Memphis hit 910 in 2021 and 872 this year, and guns reported stolen nearly hit 1,500 in 2021 and 2,000 this year.

Bill Gibbons, a former state safety commissioner and president of the Memphis Shelby Crime Commission, told lawmakers Thursday the guns are being stolen by juveniles who are breaking into cars. He acknowledged someone broke into his car but didn’t steal a gun.

No one on the Memphis Shelby Crime Commission surmised whether an increase in gun violence and thefts has anything to do with the state’s permit-less carry law, which allows any “law-abiding” resident to carry a gun without a state permit.

Gibbons commended the Legislature for passing a truth in sentencing bill this year that will require sentences for violent crimes to be served at 100% and others at 85%. He encouraged lawmakers on serving on the Ad Hoc Committee to Review the Adequacy of the Supervision, Investigation & Release of Criminal Defendants (that’s a mouthful) to close a loophole for aggravated assault with a gun.

Here’s a bold prediction: Anything considered remotely soft on crime will be DOA next session. Instead, look for more get-tough policies.

Shockingly, none of those on the panel or speaking to the panel surmised whether this increase in gun violence and thefts has anything to do with the state’s permit-less carry law, which allows any “law-abiding” resident to carry a gun without a state permit.

Rapper Adolph Robert Thornton, Jr., (AKA) stage name Young Dolph, was shot and killed in Memphis, Tennessee, on Wednesday, Nov. 17, 2021. The 36-year-old rapper was fatally shot after walking into MakedaÕs to purchase cookies. (Photo by Karen Pulfer Focht ©)
Rapper Adolph Robert Thornton, Jr., (AKA) stage name Young Dolph, was shot and killed in Memphis, Tennessee, on Wednesday, Nov. 17, 2021. (Photo by Karen Pulfer Focht ©)

Call me crazy, but it appears more people are taking guns with them – at least in Memphis – and leaving them in cars. Teens go out looking for weapons and quick money. They break out windows, check under the seats, the dashboard and console, then go to the next one.

Lawmakers have resisted efforts to penalize people for leaving guns loose in cars. 

The solution? Don’t leave a gun in the car. You can figure it out from there. 

Broken record

While inflation is hitting more than 8% and Tennessee families are paying more for everything from food to technical services, Tennessee coffers are bursting like a worn-out wine skin.

In September, the state’s total tax revenues were $2.1 billion, $243 million more than last September and $277 million more than budgeted. For the first two months of fiscal 2022-23, revenues were $407 million higher than budgeted.

Those figures mirror what we saw in the previous fiscal year when taxes grew 16.5%, at least $4.6 billion more than budgeted, the highest since 1992-93. The governor and Legislature spent $3 billion of that in the supplemental budget.

Despite the cash flow, Finance and Administration Commissioner Jim Bryson, remains cautious because of questions about the national economy, which, oddly enough, is helping the state reap more sales tax revenue. 

Lawmakers and the State Funding Board go through a set of hand-wringing sessions at the end of each year when economists present forecasts for the next budget, constantly raising fear of recession.

Last November, with those worries ringing in their ears, the board revised the general fund growth rate to 7.75% to 8.5% and set this year’s growth rate at 1.75% to 2.25%.

Granted, conservative budgeting is the best route. But when your most recent budget year brought in nearly $5 billion more than projected, you’ve got to start wondering whether something’s wrong with your forecast or your forecasters.

With a rainy day fund set to hit $1.8 billion at the end of this fiscal year and fund balances totaling $13.8 billion (as of June 30, 2021) some $10.8 billion of which is unrestricted, Tennessee is sitting on a nice chunk of change. Spoiler alert, the number will be even higher when the next Comptroller’s report comes out.

What is Joe Six-Pack to do?

After all, this is the people’s money, and good conservatives tax them as little as possible.

“I got money in the bank/ Shawty, what you drank?”

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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.