ON ABORTION, AT LEAST DISCUSS

When the Tennessee legislature convenes a week from today, abortion is likely to be a much discussed topic during the session.

Many pro-life Volunteer State residents probably hoped the United States Supreme Court’s decision last June that abortion was not a constitutional right but one for the states to decide would be the last word on the subject. That was not to be, and, since the issue is now in the hands of the individual states, the subject may well be discussed with every proposed abortion measure that is introduced in every ensuing year.

But back to 2023.

Abortion supporters say Tennessee’s law is one of the strictest in the country because — in addition to banning most abortions outright — it forces doctors to prove that, in their “good faith medical judgment,” an abortion was necessary “to prevent the death of the pregnant women or to prevent serious risk of substantial and irreversible impairment of a major bodily function.”

Before the law about doctors took effect, if a woman on the advice of her doctor had an abortion because it was the doctor’s opinion it would save her life or save her from a severe impairment, there were no repercussions on the doctor’s part.

Now, if a doctor advises a woman to get an abortion for the same reasons, the doctor could be prosecuted, could be fined $10,000 and could spend up to 15 years in prison if the doctor is unable to prove in court that the abortion was medically necessary to save the woman’s life.

Since the law went into effect in August, numerous abortion procedures have been performed across the state for the likes of ectopic pregnancies, which occur when a fertilized egg implants and begins growing outside the uterus and which can threaten the life of the mother. But if any doctor has been charged under the new law, it has not come to light.

Nevertheless, critics of the abortion law say it has made physicians who treat women fearful about giving any advice or prescribing an abortion for health reasons, and state Rep. Yusuf Hakeem, D-Chattanooga, even has said he has “reports from incoming physicians who are opting not to come to Tennessee because they don’t want to be in that position to prove their innocence.”

Already, the issue has divided the state’s two top legislators, Lt. Gov. Randy McNally, who leads the Senate, and House Speaker Cameron Sexton, R-Crossville. McNally told the Times Free Press he has no interest in making any changes in the law at the moment, while Sexton told this newspaper that “depending on the language, I could be for something like that” (changing the law to deal with exceptions such as the life of the mother, rape and incest).

At least two legislators, Hakeem, and Sen. Ken Yager, R-Kingston, have filed or plan to file bills that would change the law.

Hakeem’s would exempt abortions performed “due to a medical emergency affecting the physical and mental health of the pregnant person or performed on a patient whose pregnancy was the result of rape or incest.”

Since legislators intentionally did not include “mental health” in the original abortion law because such wording can be vague and misused, the Chattanooga legislator’s measure is not likely to gain traction.

Yager has said his bill would allow an exception in the law for physicians who perform abortion to save the life of the mother, but not necessarily rape or incest. He told the Nashville Tennessean the current law keeps doctors from advising on procedures they normally would believe were medically necessary.

Another Republican, Richard Briggs, R-Knoxville, has admitted he did not fully understand the 2019 law, for which he voted but which did not go into effect until after the Supreme Court decision last year.

“Here, the defendant is guilty until he can prove that he’s not guilty,” he told ProPublica. “In my opinion, that is a very bad position to put the doctors in.”

State Rep. Patsy Hazlewood, R-Signal Mountain, had a similar sentiment, telling this page a doctor in essence having to be considered guilty until proven innocent “is counter to what most consider to be the cornerstone of the American justice system.”

“I also expect robust discussion regarding potential exceptions for rape and incest, and fetal abnormalities that are not compatible with life,” she said in an email. “These are difficult issues, but ones that the legislature needs to fully debate in order to better understand the consequences of both the existing legislation and any proposed modifications.”

Tennessee Gov. Bill Lee and state Sen. Todd Gardenhire, R-Chattanooga, have said they saw no need to change the law. Lee said the measure “does have exceptions for the life of the mother and serious maternal health conditions.” Gardenhire said he thought the current law ought to get “a kind of two- or three-year time period” to see if problems arise.

We think all bills and all amendments to the abortion law ought to have a good airing in the legislative session to see if tweaking, changing or eliminating language is necessary. Since the law didn’t immediately go into effect when it was passed, it behooves those who passed it to see if reality requires any changes. Maybe it doesn’t, or doesn’t yet, but we don’t think debating the measures can hurt.