How close to death must a woman be to get an abortion in Tennessee?
Months after the implementation of the most stringent abortion ban in the country, conservative lawmakers in Tennessee have publicly acknowledged that the state’s ban poses grave risks to the lives of women.
Now a political debate over how to change the law is centered on questions that would have been considered unthinkable before last June’s reversal of Roe v Wade: like how close to death a woman must be before a doctor may legally treat her if it means terminating her pregnancy, and whether women should be forced to carry embryos with fatal anomalies to term.
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Will Brewer, the powerful lobbyist of Tennessee Right to Life, a Christian anti-abortion group that wrote the current ban, has been accused of waging a campaign of intimidation against lawmakers who he has said are seeking to “weaken” the law. In public testimony and private meetings, Brewer has said women should only be offered terminations if they are facing acute emergencies – such as when they enter an emergency room “bleeding out” – and suggested some complications can “work themselves out” without medical intervention.
Speaking last week before the West Knoxville Republican Club, Brewer also questioned the veracity of medical diagnoses involving what is known as lethal fetal anomalies.
“Who’s to say with any kind of certainty what a medically futile pregnancy is or a fatal fetal anomaly, which is some condition with the baby that will not allow it to live outside of the womb?” he said.
The political debate is expected to come to a head this week, when two competing proposals – one of them endorsed by Brewer – will face votes in the state’s Republican-controlled legislature.
The fractious political fights shows how radically the battle lines over abortion have shifted since the US supreme court’s decision last June to reverse Roe v Wade, which in effect allowed every state to determine its own rules. In Tennessee, one of 13 states where abortion is currently banned, a “trigger law” came into effect that had been passed in 2019 in the event that Roe was ever overturned. The law states that any doctor who performs an abortion is committing a felony, and must defend themselves in court in order to prove the procedure was done to save the life of the pregnant patient.
In Tennessee, doctors who spoke with the Guardian on the condition of anonymity say anecdotal evidence suggests the state is already seeing an uptick in teenage births and that – since it has been about nine months since the trigger ban took effect – they are anticipating an increased number of babies being born who have life-threatening conditions that will immediately require treatment in neonatal units.
“I’m anticipating those situations to be among people without resources to go out of state” for abortion care, one doctor said.
At least one Republican lawmaker, state senator Richard Briggs, who is also a heart surgeon, has suggested that he co-sponsored the trigger bill without fully understanding its implications. Briggs has proposed a new law so that doctors – using their “good faith judgment” – could perform abortions to prevent or treat medical emergencies. It also allows women to terminate pregnancies if the fetus is not viable.
Briggs said he is still vehemently opposed to abortion. But in an interview, he said the current ban posed risks to the lives of women and girls, and cited a conversation he had with one obstetrician who told him about two pregnant patients she had seen since July who were just 12 years old.
“A fifth grader … their bodies are not prepared to carry a pregnancy to term. There is irreparable damage that can be done that will render it impossible for her to have children in the future. That is what Right to Life does,” he said in reference to the group that wrote the law.
While the law proposed by Briggs in Tennessee’s senate, and its companion legislation in the House, seemed to initially gain traction, Tennessee Right to Life has staunchly opposed it, and threatened to revoke its support for any Republican who supports it. It has already “un-endorsed” Briggs.
A legal memo obtained by the Guardian that was written for the anti-abortion group by Paul Linton, a longtime advocate in the anti-abortion movement, raised objections to the proposal for allowing medical interventions to “prevent” emergencies.
“It is objectionable because, without requiring an existing condition that would qualify under the definition of ‘medical emergency’, a physician could perform an abortion to ‘prevent’ a condition that might not ever materialize,” he wrote.
In an interview with the Guardian, Linton denied his stance could lead to care being delayed. Asked about the Right to Life’s insistence that women be forced to carry fetuses with lethal anomalies to term, he compared those fetuses to prisoners on death row, saying that just because they were expected to die did not mean a fellow prisoner could – prematurely – murder them.
Tennessee Right to Life has recently endorsed its own alternative legislation to counter the Briggs proposal. Its proposed bill would allow doctors to perform abortions if a woman has already miscarried or has an ectopic pregnancy, and states that doctors could only perform terminations if required in an acute emergency determined by their “reasonable medical judgment”.
Chloe Akers, a Tennessee criminal defense attorney, said the legal standards included in the Right to Life proposal would, in effect, make it easier for prosecutors to convict doctors. This, in turn, could worsen the chilling effect currently preventing care, resulting in even more delays. No doctor has been prosecuted under the current ban.
The reality is you cannot ban abortion and keep women safe
Attorney Chloe Akers
“This proposal will result in significantly more delays and denials of care than Briggs’s bill,” she said. “The reality is you cannot ban abortion and keep women safe,” she said.
For Allie Phillips, the stark reality of the abortion ban hit her late last month, after she was told at 19 weeks of pregnancy that her baby was not viable and that continuing to carry it posed risks to her health. Instead of being offered a termination, Phillips was forced to look out of state for treatment, eventually traveling to New York City. The cost of the trip and procedure – which was not covered by her Tennessee insurance plan – was ultimately paid for with the help of a public appeal for financial help over GoFundMe.
“I can’t wrap my mind around the fact that not only is it men making laws against women’s bodies, but that a politician has the right to tell you what you can and can’t do medically – especially in 2023,” Phillips said. “I can be mad about it, I can cry about it. At the end of the day this is the most traumatic thing that has happened to me.”
One Tennessee obstetrician who spoke on the condition of anonymity described how patient care has been delayed since the implementation of the statewide ban, including for pregnant patients facing acute emergencies caused by issues like infection or their water breaking prematurely.
In one case, the obstetrician said, a pregnant patient brought to a hospital by an ambulance who required an abortion at 18 weeks faced a delay in care inside the hospital because of bureaucratic hurdles.
“There was all the additional paperwork and calling legal and making sure that anesthesia and nursing teams all understood that we were about to commit a felony, and then making sure we have a team that is comfortable with that,” the doctor said.
In another case, a patient whose pregnancy faced serious complications – the fetus had a heartbeat but there was no amniotic fluid – needed an abortion at 13 weeks but was sent home. She returned a week later showing signs of infection and needed four units of blood.
“It doesn’t seem like a great use of limited resources when there was no chance that pregnancy was going to survive,” the obstetrician said.
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