Tennessee House passes narrow exceptions to state's total abortion ban

A Tennessee bill to carve out very narrow legal exceptions for doctors who perform abortions to save the life of a pregnant patient received bipartisan passage in the House on Monday night, though Democrats and physicians argued the bill does not go far enough to protect patients and health care professionals.

House Bill 883 explicitly exempts ectopic and molar pregnancies from Tennessee's abortion ban, in addition to allowing doctors to perform abortions if in their "reasonable" medical judgment an abortion would prevent the death or "to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman."

Representatives voted 83-11 for the legislation. A Senate companion bill still needs committee passage before it could go to a floor vote.

Doctors and Tennessee Democrats have criticized Republicans for dialing back legal exception language in the bill to satisfy the concerns of anti-abortion lobbyist group Tennessee Right to Life.

Right to Life's opposition to an initial version of HB 883 caused Republicans to hit the brakes on the legislation even after it received bipartisan support in an initial committee, during which House Speaker Cameron Sexton, R-Crossville, scolded the group's lobbyist for threatening to negatively rate lawmakers who voted for the initial version.

'Good faith' to 'reasonable' medical judgment

House sponsor Rep. Esther Helton-Haynes, R-East Ridge, initially filed a bill that allowed doctors to make an abortion call under their "good faith" medical judgment. But following opposition from Right to Life, Helton-Haynes changed the language to the "reasonable" medical judgement, which doctors say still leaves them open to criminal prosecution.

The new version of the bill also stripped language to allow abortions in the case of fatal fetal anomalies, such as when a fetus' heart grows outside of the body, which Right to Life has opposed. Right to Life supported the new version of the bill.

Helton-Haynes's goal was to remove the affirmative defense portion of the current abortion ban, the representative said. Under affirmative defense clause, a doctor performing any abortion knowingly commits a Class C felony, even if they were not ultimately prosecuted.

"This bill provides better clarity and returns to the normal judicial system practice of innocent until proven guilty," Helton-Haynes said Monday night. "It protects the life of the mother and the life of the baby."

Right to Life lobbyist Will Brewer had previously told lawmakers the group opposed bill language that left "subjective" decisions up to doctors, as some medical emergencies will "work themselves out."

Multiple Tennessee doctors have gone public in opposition of the law, arguing Right to Life's characterization of medical practice is ill-informed and dangerous to ethical medical practice.

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"There has been a tremendous burden on members of the medical community," said doctor and Rep. Sabi Kumar, R-Springfield, of the current law. Kumar supported stripping affirmative defense from the law. "Physicians who are on the frontline of making difficult decisions can act in the best interest of the mother and the baby."

Rep. Gloria Johnson, D-Knoxville, said she's trusted the "good faith" decisions of her physicians for 60 years, and she criticized the move to strip the good-faith standard from the bill.

"The doctor's risk goes down as the woman, the patient's risk, increases. Is this a relationship we want to encourage, where the sicker and more endangered the woman's life is, the doctor's risk is less?" Johnson asked. "I don't think this is what Tennesseans want to see."

Republicans on Monday voted down an effort by Johnson to amend the bill to allow rape and incest exceptions for minors, asking her colleagues if Tennessee really wants to be a state that "forces children to carry pregnancies." A previous effort to add rape and incest exceptions failed to advance in committee earlier this year.

"Eighty percent of Tennesseans support the legalization of abortions with exceptions," Johnson said, citing a Vanderbilt University poll released last year. "This amendment is what the vast majority of Tennesseans want. Why are we answering to lobbyists instead of our constituents?"

Johnson has been an outspoken opponent of Tennessee's current law and has called for broad access to abortion services. In emotional testimony before a House committee last week, she shared her story of terminating a pregnancy in her early 20s due to health complications.

The amended bill also proposes the Department of Health issue quarterly abortion reports to the governor and General Assembly on the number of procedures performed. This data has been collected by the Department of Health for years in Tennessee.

Rep. G. A. Hardaway, D-Memphis, voted in favor of the bill along with several other Democrats, but Hardaway noted it leaves many people behind, including "little girls who will suffer psychological trauma" who become pregnant from sexual assault.

"This is a step. It's not sufficient," Hardaway said. "We'll still be honoring the wishes of rapists and incestuous relationships, as opposed to respecting the dignity of women.

"I'm going to vote for the bill, not because I support it, but because it's better than nothing."

Nine Democrats and two Republicans voted against the bill, with two additional Republicans recorded as present, not voting.

Anti-abortion group sought to preserve ability to prosecute doctors

Senate sponsor, Sen. Richard Briggs, R-Knoxville, moved to amend his bill to match the House version in the Senate Judiciary Committee on Tuesday. Briggs, a physician, was one of the first lawmakers to call for changes to the state's ban, alongside the Tennessee Medical Association and the University of Tennessee medical school.

The committee has rolled the bills multiple times in recent weeks as Senate Republicans have struggled to get the votes necessary to advance any exceptions legislation.

Briggs faced strong blowback from Right to Life last fall. The group's political action committee pulled its endorsement of the senator when he went public with his concerns about the trigger ban. Briggs called the move a "shot across the bow" to other Republicans as Tennessee's

Briggs, who voted for the Human Life Protection Act in 2019, told The Tennessean last year he didn't fully understand how the affirmative defense would work and that the law, which was immediately blocked by courts at the time, was largely hypothetical before the U.S. Supreme Court last summer overturned the landmark Roe v. Wade decision.

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In recorded comments Brewer made to a West Knox Republican Club earlier this month, Right to Life's Brewer said the group continues to oppose Briggs' Senate bill with the original good faith standard because it would be too difficult to prosecute a doctor if the law was changed.

"It is nearly impossible to prosecute somebody for what they, as an individual, believe was right in the moment," Brewer said. "I'm not talking about the majority of doctors. I'm talking about a doctor who makes up a reason to abort a pregnancy when the mother's life wasn't really at risk. If that doctor is ever found out and pressed with charges, no DA could successfully prosecute that doctor under this law because you can't get in somebody's head in the moment."

Dr. Heather Maune, an obstetrician/gynecologist practicing in Nashville, watched the House vote from the Capitol gallery on Monday night after lobbying lawmakers to support the previous good faith medical judgement standard rather than the Right to Life-supported language.

“Unfortunately, some strong, well-funded special interest groups, who do not respect the patient-physician relationship and who disregard the suffering this law has already inflicted, would prefer to see mothers teeter on the brink of death or severe illness before physicians are allowed to intervene,” she said. “This is unethical and dangerous. It is only a matter of time until someone, possibly a mother who already has children, loses their life."

Reach Melissa Brown at mabrown@tennessean.com.

This article originally appeared on Nashville Tennessean: TN abortion ban: House passes narrow exceptions to it