Tennessee Republican lawmakers on Wednesday took another swing at adding a narrow exemption to one of the strictest abortion bans in the United States.
Nearly a month ago, a Republican legislative panel defied political threats made by the state's influential anti-abortion lobbying group and advanced legislation clarifying situations where abortion could be allowed in Tennessee.
However, despite the committee's endorsement, the legislation was almost immediately considered doomed inside the GOP-dominant Statehouse, owing to the reluctance of the members to support efforts to loosen the strict abortion ban.
After weeks of political negotiating, Tennessee Right to Life announced on Monday they would support a newly crafted proposal that's even much more narrowly focused than the original version. The House Health Committee then advanced the proposal Wednesday.
Currently, Tennessee has no explicit exemptions in its abortion ban. 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 new proposal unveiled Wednesday 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.
Defenders of Tennessee's so-called trigger law, which include Republican Gov. Bill Lee, say pregnant women are protected from harm and doctors are unlikely to face any of the law's hefty felony charges. However a group of Republican lawmakers have voiced that the ban should be changed. Many have cited that doctors are terrified to do their job out of fear of being prosecuted and losing their medical licenses, while others point out that many Republican voters are in favor of clear exemptions.
Yet ever since the ban went into place, there has been massive disagreement on how Tennessee's law should be modified. Republican-led attempts to add exemptions this year for rape and incest have been spiked by GOP-controlled committees, while Democratic attempts to explicitly state that birth control does not fall under the state's abortion ban have also faltered.
“Removing affirmative defense, it gives doctors the ability to take care of a woman with these pregnancies,” said Republican Rep. Esther Helton-Haynes, the bill’s sponsor. "I was passionate about making sure affirmative defense was removed. When I spoke with physicians, that was their number one goal. It will save mother’s lives."
When pressed on whether she was comfortable with the new language, Helton-Haynes responded that she was “comfortable knowing this language will pass.”
Republican Rep. Ryan Williams called the new language “dramatically different” and praised Helton-Haynes for finding a compromise to getting more Republicans on board with the change.
Democratic Rep. John Ray Clemmons warned that the new language still places on a burden on doctors and hospitals to prove in court that an abortion was necessary and lamented that lawmakers were giving into political pressure rather than advancing public policy that would benefit women.
“At what point, where in that timeline, how close to death’s door have to be before that doctor’s decision is deemed reasonable?” Clemmons asked. “Doctors are going to wait until the very last minute.”
The bill would have to still clear the full House and Senate before it could head to the governor's desk. The Republican governor has not weighed in publicly on whether he supports the new proposal.
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.
“For the Democrats who introduce these bills, they’re trying to showcase the harms of an outright ban,” said Elizabeth Nash, the group’s state policy analyst. “For the Republican side, we’re seeing them introduce these bills because they understand their constituents are unhappy.”
Meanwhile, Nash argued the overall push to add exemptions to strict abortion bans would only apply to a narrow group of people, and doctors could still end up feeling unsure how they can proceed under a narrow exception.
“These exemptions don’t actually provide for meaningful access to abortion,” she said. “By their very nature, they put a preference on some sort of abortion over others.”
