Why more women are joining a lawsuit challenging Tennessee's abortion ban

Rachel Fulton and her husband had reached the nesting phase of her second pregnancy last fall, pulling up their baby stuff from the basement to dust off and decorating the new nursery.

Despite a few concerning conditions identified early in her pregnancy, Fulton was ecstatic to bring another baby boy home to join their toddler. They named him Titus, from the Bible.

But a November appointment changed everything.

An ultrasound showed his lungs, nervous system and lower spine were underdeveloped, with fluid building up in his abdomen and neck.

Her doctor said the baby's development indicated fetal hydrops, a condition with often grim prognoses. It also put Fulton at high-risk of developing mirror syndrome, a rare maternal condition that can be life-threatening and, due to a pre-existing heart condition, especially dangerous and difficult to monitor for Fulton. After further consultation with her doctor, Fulton and her husband decided to terminate the pregnancy to preserve her health.

They couldn't receive an abortion in Tennessee, which last year added a very narrow exception to its total abortion ban for procedures to preserve the life and health of a pregnant person.

Many doctors say it didn't go far enough. In cases like Fulton's, with a heartbreaking fetal prognosis and dangerous maternal complications looming but not yet in acute medical crisis, Tennessee doctors are fearful to act due to the threat of prosecution.

Fulton and three other Tennessee women on Monday joined a lawsuit challenging the state's near-total abortion ban after they were forced to leave the state to terminate dangerous pregnancies, arguing the law "impedes the delivery of essential healthcare."

More: 2024 starts with shrinking abortion access in US. Here's what's going on.

The plaintiffs, which include two Tennessee doctors, have now asked the court to temporarily block enforcement of the law while the lawsuit plays out.

The Tennessean, part of the USA TODAY Network, has requested comment on the filings from Attorney General Jonathan Skrmetti's office.

"Abortions are not just a last-ditch birth control for people who got pregnant when they didn't want to. There are people who have to have abortions, and it's the last thing in the world they wanted to do," said Fulton, who had to leave family support and her trusted doctor to seek an abortion in another state. "This is such a far-reaching law with such a limited exception that eventually someone you know is going to be affected by this."

'Unnecessary risks': Group first sues in September

The Center for Reproductive Rights, a New York-based legal firm that represents the Tennessee women, first sued in September. Its initial plaintiffs became pregnant and developed severe pregnancy complications after Tennessee's trigger ban fell into place after the U.S. Supreme Court's decision overturning Roe v. Wade, but before the Tennessee General Assembly last spring passed a narrow life-and-health exception.

Two of the new plaintiffs sought abortions after the exception, said Linda Goldstein, the legal group's lead attorney on the case. Though the Center for Reproductive Rights didn't seek a temporary injunction initially, they decided to do so now after hearing from multiple women like Fulton, who heard about the lawsuit from a friend before asking the organization to join.

"This is a pervasive problem that we’re seeing," Goldstein said. "Medical care for many standard pregnancy complications is compromised in Tennessee now. Women are suffering unnecessary risks to their lives and health."

In a new filing in Davidson County Chancery Court on Monday, the plaintiffs argued "pervasive fear and uncertainty throughout the medical community" over the ambiguous scope of the abortion law exception puts "patients’ lives and doctors’ liberty and livelihoods at grave risk."

As the doctor delivered the news to her in November, Fulton felt like she was in shock. Her own mother urged her to take care of herself, to consider her toddler at home and the family who needs her.

"This isn't necessarily an exceptionally rare occurrence. Since it's happened to me, more people than I ever thought have come up and said something similar happened to me or to my sister or my neighbor," Fulton said. "This is something that is affecting more people than you think it is. As a result of that, a lot of women are scared."

The exception debate

The General Assembly last spring passed legislation amending Tennessee's total abortion ban. Prior to the new law, any doctor could be criminally prosecuted for performing an abortion for any reason. The law contained an "affirmative defense" clause, allowing a physician to defend their medical decisions in a criminal case.

More: Is abortion access in peril (even where it's legal)? Supreme Court case could tip balance.

State law now 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."

Doctors and Tennessee Democrats criticized Republicans for dialing back the bill to staunch criticism from the influential anti-abortion group Tennessee Right to Life. The initial bill, which received bipartisan support in an early committee hearings, eventually stalled amid a backroom tug-of-war to change the legal exception language from "good faith," which plaintiffs now argue has long featured in state abortion law, to "reasonable" in the bill.

Right to Life lobbyist Will Brewer told lawmakers the group opposed the original bill language that left "subjective" decisions up to doctors, as some medical emergencies will "work themselves out." The new version of the bill also stripped language to allow abortions in the case of fatal fetal anomalies, which Right to Life opposed.

""When you look back to before Roe, when Tennessee had an abortion ban, that exception allowed doctors to use their good faith medical judgment," Goldstein said. "That’s what’s been taken away from doctors in this new law. That’s what has doctors so scared. They understand what their good faith medical judgment is, and they’re willing to provide care. But they’re not willing to provide care with this objective standard where they can be second guessed after the fact, second guessed by an elected prosecutor, and they can be sent to jail for 15 years and their license will be taken away from them."

Tennessee has asked the court to dismiss the lawsuit, arguing the medical exception is not too vague and that plaintiffs are attempting to use the courts to rewrite state law.

In November, Tennessee also argued the plaintiffs don't have standing to sue, as any future pregnancies and future complications are hypothetical.

"The only way the challenged medical exception could injure patient plaintiffs in thefuture would be if the plaintiffs were to become pregnant again," the attorney general's office said in the filing. "But as the U.S. Supreme Court and others have held, claimed injury based on a future pregnancy is too uncertain to support standing."

The state pointed out Nicole Blackmon, one of the initial patients, can not become pregnant again. Blackmon chose to have a tubal ligation after her 2022 pregnancy, during which her son's organs developed outside of his body. She was advised to have an abortion due to her own health issues, but she couldn't afford to travel out of state. Blackmon eventually gave birth to a stillborn baby.

Goldstein said the state's argument is an "egregious" example of dismissing the plaintiffs' experiences.

"Here is somebody who is only 31 years old, she has many years ahead of her," Goldstein said. "And she was so terrified of getting pregnant again in Tennessee, having to repeat the ordeal that she went through in Tennessee, that she would rather forego her ability to ever get pregnant again than to take that risk. That is squarely on the state and on the politicians that she made that choice."

Reach Melissa Brown at mabrown@tennessean.com.

This article originally appeared on Nashville Tennessean: Abortion ban: Why more women are joining suit against Tennessee law