What happens in Tennessee Aug. 25, and how are women affected? That’s the effective date for the Tennessee Human Life Protection Act, which the state Legislature passed in 2019 and became law after if the U.S. Supreme Court overruled the Roe case that in 1973 legalized abortion nationwide.
The Human Life Protection Act prohibits all abortions except those performed when the woman’s life is in danger or if she’s in danger of serious, irreversible physical harm, says Vanderbilt law professor and physician Ellen Wright Clayton.
Health care providers who perform or attempt to perform abortions can be found guilty of a felony that carries jail time and a possible fine. However, they have an affirmative defense to criminal charges if their “good faith medical judgment” was that “the abortion was necessary to prevent the death of the woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function” of the woman.
The law goes on to say that the defense doesn’t apply to abortions performed because the woman might kill herself, cause herself damage to a major bodily function “or for any reason related to her mental health.”
With an affirmative defense, Clayton says, physicians performing abortions must show they meet one of the two criteria. Ordinarily, in a criminal case, the government must prove that a crime has been committed.
Moreover, Clayton says, there are no exceptions in the law for pregnancies resulting from rape or incest.
Obstetricians and gynecologists have many questions about the new abortion law, says obstetrician-gynecologist Dr. Nikki Zite, a member of the executive committee of Tennessee ACOG, the state branch of the American College of Obstetricians and Gynecologists, a professional organization. “People are so scared (that they’re) changing the way they practice,” sometimes away from what she considers “the right, evidence-based” approaches.
Ectopic pregnancies are causing particular concern, Zite says. An ectopic pregnancy occurs when an egg is fertilized but implants outside the lining of the woman’s uterus. In a normal pregnancy, the fertilized egg implants in the lining of the uterus, where it develops.
An ectopic pregnancy can’t progress to a full-term pregnancy, Zite says. Treating an ectopic pregnancy should not be considered an abortion for purposes of the law, she says, but the law doesn’t specifically address ectopic pregnancies. She says she doesn’t believe the state Legislature intended to stop abortions performed to treat or resolve an ectopic pregnancy.
As many as one in 50 pregnancies are ectopic, with infertility, pelvic inflammatory disease and previous ectopic pregnancies being risk factors, she says.
Miscarriages are another area of concern, Zite continued. Anywhere from 12% to 25% of pregnancies end in miscarriage “not all miscarriages complete on their own.” A physician taking steps to complete a miscarriage may run afoul of the Tennessee Human Life Protection Act, she says.
Clayton says she has been told that “if there is a miscarriage it doesn’t count as an abortion. That will make life really complicated for physicians.” The Human Life Protection Act doesn’t mention miscarriages.
Tennessee ACOG has these “asks” for the Tennessee Legislature, Zite says:
• Modify the statute so it doesn’t require health care providers to present affirmative defenses for performing medically indicated health care, including abortions.
• Clarify the definition of risk to maternal health that would allow an abortion to be performed legally. “Doctors should not be questioning how close to death or bodily harm a woman needs to be before they intervene,” she says. This includes making clear exemptions or exclusions for ectopic pregnancy.
• Permit abortions for fetal anomalies or chromosomal abnormalities that aren’t compatible with life or are severally life-limiting. The woman “should have a choice not to carry a pregnancy that will not lead to a baby they take home.”
• Permit abortions for pregnancies resulting from rape or incest.
Clayton called on Tennessee residents to lobby the legislature to change the law on abortion, especially to allow abortions in cases of rape or incest.
“The majority of people in Tennessee think there should be a right to an abortion in certain circumstances,” she says. “I think the legislature needs to respond to that. I think we have to do advocacy – (tell lawmakers) what it (Tennessee abortion law) means to the health of women and well-being of families and get them to change their minds.”
She also cautions Tennessee women contemplating abortion not to post about it on social media and to be very careful about their online searches. That sort of information could end up being used by prosecutors to build a case against a provider, for example.
And, Clayton says, organizations such as Planned Parenthood will work with Tennessee women to help them obtain an abortion in a state where it remains legal.