Tennessee's Abortion Laws: Understanding The Current Landscape

Abortion laws vary across the United States, with Tennessee being one of the states enforcing a trigger ban, prohibiting abortion at all stages of pregnancy. The state's abortion legislation provides no explicit exceptions for the pregnant patient's health, including in cases of rape, incest, or danger to the mother's life. Tennessee's abortion ban has sparked controversy and legal challenges, with ongoing lawsuits filed by women who were denied abortions despite facing dangerous pregnancy complications. The state also has a history of attempting to restrict abortion access and has additional laws regulating the procedure.

Tennessee abortion laws and the Supreme Court

Tennessee's abortion laws are among the most restrictive in the United States. The state bans abortions at all stages of pregnancy, with no exceptions for rape, incest, or the health of the mother. The only exception provided is for an "affirmative defence" in emergencies, but the ambiguity of what constitutes an emergency means that physicians are hesitant to perform abortions even when the mother's life is at risk.

The state's abortion ban took effect on 25 July 2022, 30 days after the US Supreme Court overturned Roe v. Wade, the 1973 decision that had guaranteed a constitutional right to abortion. Tennessee was one of the first states to trigger a near-total abortion ban following the Supreme Court's ruling.

The Supreme Court's decision in Roe v. Wade initially prevented states from regulating abortion in the first trimester. However, the Court's subsequent overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. ___ (2022) allowed states like Tennessee to implement restrictive abortion laws.

Tennessee's abortion legislation has faced legal challenges. On 12 September 2023, three women filed a lawsuit against the state, arguing that they were denied abortions despite having dangerous pregnancy complications. Four additional women and two doctors joined the lawsuit in January 2024. The outcome of this case could have significant implications for abortion access in Tennessee.

In a separate case, a federal judge temporarily blocked Tennessee's "abortion trafficking" law, which made it illegal for adults to help minors obtain an abortion without parental permission. The judge, U.S. District Judge Aleta Trauger, argued that the state cannot "make it a crime to communicate freely" about legal abortion options, even if abortion is largely banned in the state. This ruling demonstrates the complex legal landscape surrounding abortion in Tennessee, with lower courts playing a critical role in shaping abortion access.

Tennessee abortion laws and the constitution

Tennessee's abortion laws are some of the most restrictive in the United States. The state constitution was amended in 2014 to remove protections for abortion rights, and Tennessee is now one of four states that forbid abortion access through their state constitution.

Abortion in Tennessee is illegal from fertilization and provides no exceptions for rape, incest, or the health of the mother. The state's abortion legislation does make an exception for an "affirmative defense" in emergencies, but the vagueness of what constitutes an emergency means that physicians are hesitant to provide abortions even when the mother's life is in danger. Tennessee law retains gestational bans at six weeks and twenty weeks LMP, and after viability. It also prohibits D&X procedures and abortions sought due to the sex, race, or Down syndrome status of the fetus.

Tennessee law includes several requirements that pregnant individuals must fulfill before obtaining an abortion. These include a mandatory 48-hour waiting period, biased counseling, and an ultrasound. The state also prohibits public funding and private insurance coverage for abortions and requires that a parent, legal guardian, or judge consent to a minor's abortion.

The state's abortion laws have faced legal challenges, with pro-abortion rights organizations and individuals suing Tennessee over the restrictions. In 2022, following the U.S. Supreme Court's decision to overturn Roe v. Wade, Tennessee began enforcing its trigger ban, which criminalizes abortion at all stages of pregnancy with limited medical emergency exceptions.

Tennessee abortion laws and medical emergencies

Tennessee's abortion laws are among the strictest in the US. The state's Human Life Protection Act, also known as the Trigger Act, prohibits abortion from the point of fertilization and provides no exceptions for rape, incest, or the health of the mother. The law includes an "affirmative defense" for medical emergencies, but the vagueness of this clause means physicians are often hesitant to provide abortions even when the mother's life is in danger.

The affirmative defense clause states that someone who performs an abortion may be charged with a felony but has the opportunity to prove that the procedure was necessary to prevent the patient from dying or to prevent serious risk of "substantial and irreversible impairment of a major bodily function." This effectively places the burden of proof on doctors, who must demonstrate that the abortion was a medical necessity.

The lack of clarity in the law has led to concerns among medical professionals, who worry about the potential legal consequences of providing abortions, even in emergency situations. This has resulted in delays in patient care, even in cases of acute emergencies such as infection or premature rupture of membranes. In one instance, a pregnant patient brought to the hospital by ambulance and requiring an abortion faced delays due to bureaucratic hurdles and the need to ensure compliance with the abortion law.

The interpretation of what constitutes a "medical emergency" is a subject of debate. Will Brewer, a lobbyist for the anti-abortion group Tennessee Right to Life, has suggested that abortions should only be offered in cases of acute emergencies, such as when a woman is "bleeding out" in an emergency room. He also questioned the validity of medical diagnoses involving lethal fetal anomalies, arguing that it is challenging to determine with certainty whether a pregnancy is medically futile or the fetus has a fatal anomaly.

In contrast, state senator Richard Briggs, who is also a heart surgeon, has proposed legislation that would allow doctors to use their "good faith judgment" to perform abortions to prevent or treat medical emergencies. Briggs' proposal has faced opposition from Tennessee Right to Life, which argues that it could allow abortions to "prevent" conditions that might never occur. The group has endorsed alternative legislation that would permit abortions if a woman has already miscarried or has an ectopic pregnancy and allows doctors to perform terminations in acute emergencies based on their "reasonable medical judgment."

Tennessee abortion laws and minors

Abortion laws in Tennessee are some of the strictest in the United States. Abortion has been illegal in the state since 25 August 2022, thirty days after the overturning of Roe v. Wade. The state constitution forbids abortion access and makes no exceptions for rape, incest, or the health of the mother.

Tennessee's abortion laws also have implications for minors. A bill introduced in January 2024, HB1895, would make it a felony for adults who help pregnant minors obtain an out-of-state abortion without a parent's consent. The bill states that an adult who "recruits, harbors, or transports a pregnant unemancipated minor within this state" to aid them in accessing an abortion is committing "abortion trafficking of a minor". This would be a Class C felony, unless the adult is a parent or legal guardian.

The bill has been criticised by Planned Parenthood of Tennessee and North Mississippi, who argue that it will "have a chilling effect and is dangerous and irresponsible". They highlight the risks for minors in abusive households, where disclosing sexual activity or pregnancy could lead to physical or emotional abuse.

Tennessee's abortion laws have been the subject of legal challenges and protests. The state's heartbeat bill and Texas-style abortion ban are currently being contested in court by pro-abortion rights organisations. Additionally, there have been protests against the abortion ban in cities like Memphis and Nashville, and an abortion rights protester walked across the entire state of Tennessee in 2022 to demonstrate against the Supreme Court's decision to overturn abortion rights.

Tennessee abortion laws and criminal charges

Tennessee's abortion laws are among the strictest in the United States. Abortion in the state is illegal from fertilization and provides no exceptions for rape, incest, or the health of the mother. The state's abortion legislation does, however, make an exception for an "affirmative defense" in emergencies, but the vagueness of what constitutes an emergency means that physicians are hesitant to provide abortions even when the mother's life is at risk.

Tennessee is one of four states that forbid abortion access through their state constitution, alongside Alabama, Louisiana, and West Virginia. The state's trigger ban, which criminalizes abortion, came into effect on August 25, 2022, thirty days after the Tennessee Attorney General notified the Tennessee Code Commission that Roe v. Wade had been overturned. The ban provides limited medical emergency exceptions.

Tennessee law retains gestational bans at six weeks and prohibits abortions sought for reasons of sex, race, or Down syndrome. The state prohibits local governments from expending funds to assist someone in accessing abortion, specifically targeting funding for out-of-state travel. It also continues to require that a parent, legal guardian, or judge consent to a minor's abortion.

Tennessee law does not include express constitutional protections for abortion. Instead, the state's constitution was amended in 2014 to preclude protections for abortion rights. The state's "abortion trafficking" law also bans adults from helping minors get an abortion without parental permission. Those convicted of breaking this law face a Class A misdemeanor charge, which carries a sentence of nearly one year in jail.

Violating Tennessee's abortion restrictions may result in civil and criminal penalties. A violation of the ban on performing abortions when the fetus is viable is a Class C felony. The state's licensing board will revoke the license of any healthcare professional who violates this law.

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