Tennessee’s strict abortion ban is under pressure, but change is unlikely under GOP control

Feb 1, 2024, 3:40 PM

NASHVILLE, Tenn. (AP) — After begrudgingly agreeing to tweak Tennessee’s strict abortion ban last year, the Republican-dominant Legislature is once again facing pressure to reconsider when doctors can legally offer the procedure to pregnant patients.

The push comes as confusion and fear continues among residents in many GOP-controlled states over how abortion ban exemptions should be applied. While a handful of lawsuits have been filed with the hopes of getting clarity in state courts, others are pursuing legislative changes.

Yet it remains unknown if state lawmakers will be receptive to any changes — particularly in an election year when many members will be vying to keep their positions.

Across the U.S., the total number of abortions provided rose slightly in the year since states began implementing bans, according to a report released late last year from the Society of Family Planning, which advocates for abortion access. The number of abortions have fallen to nearly zero in states with the strictest bans but have increased elsewhere, especially in states close to those with the bans.

When asked earlier this year if Tennessee’s abortion ban should be changed, Senate Speaker Randy McNally, a Republican, said no. “I have the feeling that where we are is where we need to be to protect the life of the unborn.”

Elsewhere, the New Hampshire House rejected three abortion bills Thursday, refusing to either further restrict or protect reproductive rights. The chamber is Republican-led but closely divided.

To date, Tennessee’s Democratic members have been the loudest in calling for significant changes to the state’s abortion ban. But with no ability to put the issue on a statewide ballot initiative — a method that to date has been successful elsewhere for reproductive rights advocates — Democrats face an uphill battle in convincing their conservative colleagues to drastically change the abortion ban.

The Democratic-backed proposals range from enacting a “fundamental right to abortion,” defining abortion services as “reproductive health care,” and also enshrining the right to contraceptive access. Others would add rape and incest as legal exemptions to the state’s abortion ban.

Currently, there are 14 states across the U.S. with strict abortion bans and almost all have some sort of exemption. At least 11 — including three states with the strictest bans — allow abortion because of fatal fetal anomalies, and some do when the pregnancy was the result of rape or incest.

So far, none of the Democratic-sponsored bills to add exemptions have made significant progress in Tennessee.

Republicans, meanwhile, have been much quieter when pressed about the state’s abortion ban. Last year, lawmakers advanced a very narrow exemption bill. The proposal was significantly pared down after legislative leaders received threats from anti-abortion groups that doing so would come with political retribution.

Lawmakers considered the change after receiving harsh criticism for enacting a ban that had no explicit exemptions. Like other states, Tennessee’s abortion ban only went into effect after the U.S. Supreme Court overturned Roe V. Wade in 2022. It was originally passed in 2019 before many Republicans thought the constitutional right to the procedure would ever be revoked — and skimmed over the consequences of how the law would be implemented.

Under the new statute, doctors now have a narrow option to use their “reasonable medical” judgment in deciding whether providing the procedure can save the life of the pregnant patient or prevent major injury.

Since that change was implemented, a group of women have sued the state arguing that the ban violates pregnant patients’ right to life as guaranteed by the state’s constitution. They’re asking a state court to clarify the circumstances that qualify patients to legally receive an abortion, which would include fatal diagnoses.

Attorney General Jonathan Skrmetti has asked the court to dismiss the lawsuit, arguing that the state has had some sort of abortion ban on the books since 1883 and countered that the state cannot be held liable for doctors potentially “over-complying” out of fear of possibly violating the law.

“Defendants are not to blame—and cannot be sued—for doctors’ ‘independent’ choice not to rely on the medical exception even when it applies,” the AG’s office wrote.

However, some Tennessee Republicans maintain that more clarifications are needed.

GOP Sen. Richard Briggs, who is a doctor, said Tennessee’s current statute still fails to properly help women, patients and doctors. He is backing legislation to include a list of diagnoses when abortion could be allowed, but acknowledged that finalizing that list has taken “lots of back and forth” after working with the Tennessee Medical Association and Vanderbilt University Medical Center.

Exact details of that bill have not yet been introduced, though Briggs said he has sponsors for both the legislation in both the Senate and the House.

“There may be some politics that come into play,” he said. “Our Senate Republican seats are pretty secure in Tennessee, but we have some concern that it could be used in a Republican primary against some members and that might make someone reluctant to vote on it.”

Separately, some Republicans are working to make it harder for residents to order medication abortion pills or to leave the state for the procedure.

GOP Rep. Jason Zachary has introduced legislation that would make it illegal for a person to help a minor arrange an abortion out of state without parental or guardian permission. Similar legislation has been enacted in Idaho, but is temporarily blocked from being enforced due to an ongoing lawsuit.

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Tennessee’s strict abortion ban is under pressure, but change is unlikely under GOP control