A rally in support of abortion rights drew hundreds to downtown Nashville on Saturday, May 14, 2022. (Photo: John Partipilo)
Just months after one of the nation’s most restrictive abortion laws took effect in Tennessee, Republican lawmakers are considering bills to provide exceptions, including for saving the life of the mother in a deadly pregnancy.
State Sens. Ferrell Haile and Rusty Crowe both confirmed to the Tennessee Lookout they are exploring legislation that would alter the law as the 113th General Assembly’s first session opens in January.
“We’re looking at what exceptions might be appropriate,” Haile, a Gallatin Republican, said.
He declined to specify whether those would include rape and incest, which are not allowed under the “trigger ban,” noting he is in the “examination phase.” He did say, though, he is “leaning toward” sponsoring legislation.
“I just think that there’s a reason here that there might be a need for some exceptions on this,” Haile said.
Asked whether such legislation could include a change in the “affirmative defense” portion of the law, Haile said that is being discussed by other lawmakers.
Crowe, a Bristol Republican, is looking at that type of legislation, which would make saving the life of the mother an exception rather than require an “affirmative defense” in which the physician would have to introduce evidence in court to negate criminal or civil liability, proving an abortion was necessary to stop the mother from dying or suffering a life-altering illness.
“In the upcoming legislative session, Sen. Crowe wants to ensure the law protects physicians who perform life-saving abortions when the life of the mother is in jeopardy. At this point, Sen. Crowe has not met with stakeholders to discuss specific legislation but he looks forward to doing so in the coming weeks and months,” said Senate Republican Caucus spokeswoman Molly Gormley.
Though Republican lawmakers who voted overwhelmingly for the “trigger ban” in 2019 are having second thoughts about the restrictions, they will run into opposition.
I just think that there’s a reason here that there might be a need for some exceptions on this. – Sen. Ferrell Haile, a Gallatin Republican, speaking on the state's strict abortion ban.
I just think that there’s a reason here that there might be a need for some exceptions on this.
– Sen. Ferrell Haile, a Gallatin Republican, speaking on the state's strict abortion ban.
Tennessee Right to Life celebrated the law’s enactment this summer after Roe v. Wade was overturned. And lobbyist Will Brewer said the organization, which was largely responsible for passage of the Human Life Protection Act, “in abstract” would oppose those types of legislation. He hasn’t seen any language yet but already voiced opposition to Haile and Sen. Richard Briggs, a Knoxville Republican, supports exceptions to save the life of the mother and for rape and incest.
Physicians who perform an abortion can be charged with a felony carrying a penalty of up to 15 years in prison and a $10,000 fine.
In addition to talking with lawmakers, Tennessee Right to Life is negotiating with the Tennessee Medical Association, after previously saying it would not agree to any changes in the law.
“We are in talks with the TMA to see if there is any kind of clarifying language that all the parties can agree to, but we’re not gonna support any kind of legislation that downgrades the affirmative defense or adds any other exceptions to the Human Life Protection Act,” Brewer said.
Brewer would not give details on those negotiations.
According to a ProPublica article published last week in the Tennessee Lookout, Brewer and other anti-abortion leaders coached lawmakers in a recent webinar on fending off changes to the state’s law.
When state Rep. Susan Lynn asked during the presentation if they could organize crisis pregnancy centers nine months after the law’s enactment to see some of their clients’ babies, Brewer responded in the affirmative.
Groups seeking to tweak the law will hit that kind of mind-set when the session starts.
The Tennessee Medical Association is among those pushing for a change in the abortion ban in cases when doctors are forced to deal with fetal anomalies and pregnancy complications. The organization is part of a coalition of medical and hospital interests working to protect women’s health.
“We don’t believe physicians should be held criminally liable or have charges levied against them for providing care and appropriate treatment, and we also believe harmful delays in care should be avoided,” TMA spokesman Doug Word said.
He declined to be specific about negotiations with Tennessee Right to Life.
Crowe, chairman of the Senate Health and Welfare Committee, could not be reached for comment this week. But he said during a meeting earlier this year he was hearing from medical and physician groups that the Legislature should “fine-tune” the law “to make sure we don’t get our docs in trouble when they’re trying to follow the law.”
Crowe said lawmakers would need to deal with questions surrounding dangerous pregnancies and fertilization of an egg outside the womb.
He pointed out the intent of the law is understood: to stop “elective” abortions, not to put physicians in a quandary or endanger women’s health during events such as ectopic pregnancies in which the egg is fertilized in the fallopian tube and other deadly situations.
Briggs, who admits he didn’t think Roe v. Wade would be overturned when he voted for the “trigger ban” in 2019, said this week he did so to make sure the state had some sort of law in effect governing abortions. Otherwise, any type of abortion could have been allowed at any time for any reason other than a medical purpose, he said.
A physician by trade, Briggs isn’t planning to carry legislation to change the abortion ban but said he will support measures to allow exceptions for rape, incest and the life of the mother.
Briggs sent a letter to Brewer and Right to Life board members explaining his position.
Though he thanked the organization for its efforts in overturning Roe v. Wade and reminded them that he co-sponsored the “trigger” bill and helped defeat legislation allowing abortion pills by telemedicine, Briggs said the law needs clarification.
“A doctor who must operate for a ruptured ectopic pregnancy or has to terminate an early pregnancy so he can save the life of a woman with acute leukemia should not be committing a crime,” Briggs wrote. “A physician dedicated to preserving a life God considers precious is not a felon whether he is charged or not. The right to life is for everyone for the whole life, not just the unborn.”
Briggs has defended physicians’ oath to provide treatment to their patients, and in the letter he also said a child “who falls victim to a brutal rape or incest should not be forced by law to carry a pregnancy which could result in her never able to have a family of her own.”
“Moral decision making is not always clear but means acting responsibly,” his letter states.
Briggs told the Tennessee Lookout his biggest mistake in voting for the “trigger” bill was that he didn’t understand the “affirmative defense” portion of the bill.
The way the law is written, doctors are guilty until they can prove their innocence, which runs counter to normal judicial protections, and they must pay their own legal bills for providing the necessary care to save the mother’s life, Briggs points out.
In the webinar conducted by Tennessee Right to Life and Susan B. Anthony Pro-Life America, lawmakers were urged not to give in to calls to change the act.
Brewer contended there is a difference between a pregnant woman bleeding in an emergency room in the middle of the night and a case in which a woman wants to end a pregnancy because she has a history of medical problems.
The Right to Life lobbyist claims those involved in the call didn’t mislead legislators, nor does the language in the law.
“And I believe in a real-world application, there is an exception for the life of the mother, even if it’s not phrased that way. It is an exception because prosecutors will take the possibility of an affirmative defense into their charging considerations, and so as you’ve seen in Tennessee with our post-viability ban and as you’ve seen in other states, nobody gets charged when there’s affirmative defense when there’s been a good-faith effort to do the right thing.”
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