Jul 6, 2022 - News

Tennessee's abortion battleground changes after Roe

Illustration of Karate hands vs. hands with a gavel

Illustration: Eniola Odetunde/Axios

For 50 years, the legal dynamic around abortion rights has essentially been anti-abortion activists and lawmakers challenging the limits of Roe v. Wade.

  • But entering into a post-Roe era, with a near-total ban expected to take effect in Tennessee next month, a legal role reversal is in the works.

Why it matters: Without Roe, advocates in favor of abortion access will have to develop new legal strategies if they choose to fight restrictions in court.

  • Nashville civil rights attorney Chris Smith says the Tennessee ban's narrow carve-out for protecting the health and life of a pregnant person could offer a foothold for a court battle.

What he's saying: Smith points out to Axios the exception — which allows doctors to defend themselves in court — could be challenged because it does not allow for abortions in situations where a pregnant person is suicidal or threatening self-harm.

  • "Tennessee's law has a carve-out for the life of a mother, but it says mental health threatening the life of a mother doesn't count," Smith says. "That might be subject to attack."

The other side: Anti-abortion activists have new battle lines as well. A Tennessee Right to Life executive told the Tennessee Lookout the organization would continue to fight against access to abortion pills.

State of play: Although medication abortions are included in Tennessee's current six-week ban and the impending near-total ban, providers around the world mail the pills to their patients.

  • Tennessee passed legislation earlier this year to outlaw prescribing abortion pills via telehealth and make mailing abortion pills in the state a felony.

Between the lines: Nashville defense attorney David Raybin tells Axios that multiple people a day have come to him asking if there is any available legal avenue to get abortion pills in Tennessee.

  • He says state law creates criminal penalties for their distribution, although he acknowledges debates over legal access are likely to continue.
  • "Where this can go in the coming weeks will have to depend on litigation — in other states and in Tennessee," Raybin says.

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