Tennessee judges say doctors can't be disciplined for providing emergency abortions

[October 18, 2024]  By KIMBERLEE KRUESI

NASHVILLE, Tenn. (AP) — A three-judge panel on Thursday ruled that Tennessee doctors who provide emergency abortions to protect the life of the mother cannot have their medical licenses revoked or face other disciplinary actions while a lawsuit challenging the state's sweeping abortion ban continues.

The ruling also outlined specific pregnancy-related conditions that would now qualify as “medical necessity exceptions” under the ban, which currently does not include exceptions for fetal anomalies or for victims of rape or incest.

“This lack of clarity is evidenced by the confusion and lack of consensus within the Tennessee medical community on the circumstances requiring necessary health- and life-saving abortion care,” the ruling stated. “The evidence presented underscores how serious, difficult, and complex these issues are and raises significant questions as to whether the medical necessity exception is sufficiently narrow to serve a compelling state interest.”
 

The judges determined that the following medical conditions now fall under the state's abortion exemptions: premature rupture of the amniotic sac that surrounds the fetus; inevitable abortions; fatal fetal diagnoses that result in severe preeclampsia or mirror syndrome associated with fetal hydrops; and fatal fetal diagnoses leading to an infection that will result in uterine rupture or potential loss of fertility.

The abortion law initially only explicitly stated that ectopic or molar pregnancies qualify as exemptions, as well as doctors who use their “reasonable medical judgement” in order to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.”

The ruling is a win for reproductive rights advocates who have argued that the Volunteer State’s abortion ban, which has been in effect since 2022, is too vague and unfairly puts doctors at a high legal risk of violating the statute.

However, the judges also said that because they are a chancery court, they do not have the jurisdiction to block the criminal statute inside the ban — where violators face felony charges carrying a prison sentence as high as 15 years.

This means that while doctors will not face disciplinary actions from the Attorney General's office and the Tennessee Board of Medical Examiners, they could still risk criminal charges under Thursday's ruling.

The lawsuit was initially filed last year by a group of women and doctors asking the judges to clarify the circumstances in which patients can legally receive an abortion. Specifically, they requested the court to include fatal diagnoses.

The Center for Reproductive Rights, which is representing the women and doctors, argued that the GOP-dominated General Assembly wrote Tennessee's abortion ban so overly broad and vague that doctors have no choice but to operate in fear that their decisions on whether to perform an abortion will be second-guessed, undermined and potentially be used to bring career-ending charges against them.

Among the plaintiffs is Rebecca Milner, who learned she was pregnant with her first child in February 2023 after several years of unsuccessful fertility treatments.

According to court documents, Milner was told at a 20-week appointment that the amniotic fluid surrounding her baby was low. A specialist later said that her water had broken likely several weeks before and that nothing could be done to save the baby.

Yet her doctor said that Tennessee’s abortion ban prohibited abortion services in her situation and Milner was forced to travel to Virginia for an abortion and returned to Tennessee with a high fever. Doctors told her that she had an infection and that the delay in getting an abortion allowed the infection to worsen.

The state's attorney had countered that doctors don't want their medical decisions questioned by the government and attempted to dismiss the case by arguing the plaintiffs didn't have standing to sue. The judges largely denied that request, but agreed to dismiss one of the women who joined the lawsuit because she underwent surgery that prevents her from becoming pregnant again.

“The State’s position from the outset has been that Tennessee’s Human Life Protection Act allows pregnant women to receive all necessary care to address serious health risks,” said Attorney General Jonathan Skrmetti in a statement. "The court’s limited injunction order mirrors that understanding. We all agree that doctors should save lives and protect their patients.”

The legal challenge in Tennessee is part of a handful of lawsuits filed across the U.S. in Republican-dominant states after the U.S. Supreme Court overturned the constitutional right to abortion in 2022.

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