Aug 25, 2022 - News

Tennessee's sweeping abortion ban goes into effect

Illustration of a caduceus and question mark.
Illustration: Lindsey Bailey/Axios

Tennessee's sweeping abortion ban takes effect Thursday.

  • Critics argue the law creates a "dangerous" legal gray area for health care providers.

Why it matters: The ban, which was triggered by the U.S. Supreme Court ruling overturning Roe v. Wade, makes performing abortions a Class C felony punishable by three to 15 years in prison.

Driving the news: In the days before the ban began, critics lamented that the law contains no true exceptions.

  • Instead, the law lays out a path for providers to defend themselves in court by arguing an abortion was necessary because the pregnant person's life was in jeopardy or if there was a "serious risk of substantial and irreversible impairment of a major bodily function."
  • But that defense would only come into play "at a criminal trial — after they have been indicted," Metro law director Wally Dietz said at a forum earlier this month.

What they're saying: "These terms are not defined,” Dietz said of the "serious" health risks described in the law. "As a lawyer, it's maddening that there's no definition for this, but I'm sure for the medical experts on this panel, it's even more disturbing."

  • "This statute has so many gray areas that we are in a very dangerous territory in Tennessee once we get to Aug. 25."

The other side: Gov. Bill Lee pushed back on that interpretation earlier this week.

  • "I think what we need to make sure is that there is an ability for a doctor to perform in the case of a dangerous maternal health situation," Lee said, according to the Tennessean.
  • "My sense and understanding from the law is that does exist now."

State of play: Some local groups want lawmakers to carve out exceptions during the upcoming legislative session, per the Tennessean.

Mayor John Cooper and the Metro Council have pushed to cover travel expenses for city employees who need to leave the state for an abortion.

  • District Attorney Glenn Funk said he would not use the law to prosecute health care providers for performing abortions, although state law could allow for a special prosecutor on those cases.

The big picture: Nashville defense attorney David Raybin tells Axios the law was designed to dissuade providers from performing abortions regardless of the reason. "A doctor performs an abortion at his or her peril," he says.

  • "There are no exceptions under this statute. There are many that advocate that it has exceptions. It does not."
  • Raybin says that even if a doctor believes an abortion was justified because of a threat to the pregnant person, it might not be an ironclad criminal defense.
  • "If the doctor is wrong and the jury doesn't go along with that, they're convicted," Raybin says. "It's not litigated in the hospital room; it's litigated in the courtroom."
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