Tennessee House OKs narrow abortion exemption bill

Tennessee’s GOP-dominant House has advanced legislation to add a narrow exemption to the state’s strict abortion ban

March 20, 2023, 9:17 PM

NASHVILLE, Tenn. -- Tennessee's GOP-dominant House on Monday advanced legislation that would add a narrow exemption to the state's strict abortion ban, despite concerns raised by Democrats and medical experts that the bill does not go far enough to protect doctors and pregnant patients.

The legislation was drastically reworked from its original version that was introduced just last month after Tennessee's influential anti-abortion lobbying group came out in opposition. Tennessee Right to Life warned that could face political retribution for voting on a bill that would have allowed doctors to provide abortions based on their “good-faith judgement.”

Instead, the legislation advanced Monday allows doctors to use a “reasonable medical judgment” when determining an abortion is necessary to prevent the death of a pregnant patient or to spare her from the irreversible, severe impairment of a major bodily function. Some doctors argue that is a harsher legal standard.

“This bill provides better clarity and returns to normal judicial system practice – innocent until proven guilty,” said Republican Rep. Esther Helton-Haynes, the bill's sponsor. “It protects the life of the mother and the life of the baby.”

The final vote split the Democratic caucus, while only two Republicans voted against it.

Republicans voted down several Democratic amendments to add more protections for doctors and women, including one to make exceptions for pregnant victims of rape and incest, while making criminal abortion a misdemeanor instead of a felony. Another would have provided the rape and incest exception just for minors whose pregnancies are at 22 weeks or fewer.

Democratic Rep. Gloria Johnson said the bill as passed sets up a “dangerous relationship” in which the doctor's risk decreases as the woman's risk increases.

“How close to death must their patient be for them to avoid criminal prosecution?” Johnson said. "That’s something that I don’t think we should be asking women to test."

The bill must now go to the Senate before it can head to Republican Gov. Bill Lee's desk for his signature.

Currently, Tennessee has no explicit exemptions under it's so-called “trigger law,” which wasn't allowed to go into effect until after the U.S. Supreme Court overturned the constitutional right to abortion. Instead the law includes an “affirmative defense” for doctors, meaning that the burden is on the physician to prove that an abortion was medically necessary — instead of requiring the state to prove the opposite.

The latest bill advancing through the Tennessee Statehouse removes the affirmative defense for doctors and adds in language that doctors may provide abortion services for ectopic pregnancies and miscarriages. However, it does not include the previous version’s inclusion of “medically futile pregnancies” and lethal fetal anomalies as approved reasons for physicians to provide an abortion. Instead, it allows doctors to use “reasonable medical judgment” to determine if an abortion is necessary.

There is no exception for rape and incest.

The governor, Senate Speaker Randy McNally and other top GOP leaders have long defended Tennessee's abortion ban — arguing that they believe that women are still protected under the law and that no doctor has faced felony charges ever since it went into effect. Nevertheless, a growing group of Republican lawmakers have begun voicing support for an explicit exemption. Yet that effort inside the Republican-controlled Statehouse has faced resistance as lawmakers remain skeptical of softening one of the harshest abortion bans in the United States.

Nationally, attempts to loosen strict abortion bans in Republican-led states have popped up in Arkansas, Missouri, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia, according to the Guttmacher Institute research group that supports abortion rights. Many of the bills are backed by Democratic lawmakers, but a handful are being pushed by Republicans.

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