McNally open to amending abortion ban language

NASHVILLE — Tennessee Lt. Gov. Randy McNally said Thursday he might be willing to consider reframing some language in the state’s abortion ban if it means better protecting the law from legal challenges while also maintaining the original intent to prevent nearly all abortions unless medically necessary.

The Republican Senate speaker from Oak Ridge confirmed he was among the officials Tennessee Attorney General Jonathan Skrmetti has reached out to about the law. He said Skrmetti believes that while he can defend the law, he might be able to do a better job arguing in court if a few changes are made.

“I have (spoken with Skrmetti), and that’s exactly what he said, that he could defend it better with some modifications,” McNally told reporters Thursday. “If it really does make it more defensible, I would be for it — while still accomplishing what we needed to do, (which) is protecting the life of the child.”

Tennessee’s law passed in 2019 and took effect after the U.S. Supreme Court last year overturned the 1973 Roe v. Wade decision.

House Speaker Cameron Sexton, R-Crossville, has been working with Rep. Esther Helton-Haynes, an East Ridge Republican, on her bill seeking to provide additional protections for physicians. He told reporters Thursday he, too, spoke with Skrmetti last week. Sexton said the attorney general expressed his thoughts on getting the law into a “better defendable posture.”

“He would tell you it is defendable, but (he’s) trying to make it stronger after what happened in the Idaho case,” Sexton said.

A federal judge in Idaho last year paused that state’s law that bans nearly all abortions as it applies to emergency care at hospitals, following a challenge by the U.S. Department of Justice. The department argued the law violated the federal Emergency Medical Treatment and Labor Act.

“I think we will get to a place where the House, Senate and administration can all get to an agreement on how to save the life of the mother in the language as well as save the life of the baby as well,” Sexton later told Nashville’s WTVF-TV.

He said he’s not sure how the measure, House Bill 883, will end up.

Helton-Haynes, a nurse by training, said in a phone interview the 2019 law was intended to protect both the mother and the baby. The law has no exception to allow an abortion to save the life of the mother.

Instead, it allows doctors charged with the crime to present an “affirmative defense”

“I think that the lieutenant governor should allow members to make their own decision and be free of any persuasion by his office. Just let everybody make individual decisions because this is such an important issue.”

— SEN. LONDON LAMAR, D-MEMPHIS

saying the life of the mother was in danger — but the law places the burden of proof on the doctor, not on prosecutors. Physicians have said that provision is inadequate.

“And the bill that (Sen. Richard Briggs) and I are carrying, it’s going to protect the baby as well — and the life of the mother,” Helton-Haynes said. “That’s the missing component right now. It’s not protecting the life of the mother because of the affirmative defense. I hope that we can work something out and get something passed this session.”

She said the affirmative defense is the “main component that needs to go away.”

“Anything that they do right now is really an illegal abortion because of the affirmative defense,” she said. “There’s always that fear, ‘Will I be charged for doing this?’ Even ectopic pregnancies.”

Helton-Haynes said having a physician afraid to act unless it’s an immediate life-threatening emergency is problematic.

“What’s concerning to me is women in rural communities” who are told to go back home until more serious problems occur while they live in communities with no hospital, she said.

“What if you can’t get back in time,” HeltonHaynes said, adding there are “lots of scary scenarios out there.”

Efforts to move the legislation have drawn fierce opposition from Tennessee Right to Life, which wants the 2019 law left unchanged. An attorney and chief lobbyist for Tennessee Right to Life spoke against the bill in subcommittee last month, warning lawmakers the group’s political action committee would score them negatively if they supported any weakening of the ban on abortion.

Doctors, normally a powerful lobbying force at the state Capitol, are both upset and fearful about the law.

In October, a Chattanooga obstetrician specializing in high-risk pregnancies told The Wall Street Journal that Tennessee’s abortion law led her to send a patient on a six-hour ambulance ride to North Carolina for potentially life-saving care. The doctor said she saw a patient in her second trimester of pregnancy who had rising blood pressure, indicating she was at risk of a severe preeclampsia — a dangerous condition that can cause serious complications, including death.

The unborn child, meanwhile, had been diagnosed with genetic abnormalities, making it unlikely the child would survive, and she believed the safest option for the mother was to undergo an abortion to terminate the pregnancy.

Sen. London Lamar, D-Memphis, who experienced firsthand in 2019 the loss of her baby due to complications from preeclampsia, told reporters Thursday that she knew the Democrats’ own bill was a long shot, given it provided for full reinstatement of abortions.

But Lamar has been willing to go along with the Helton-Haynes bill to allow doctors the legal space to make the decision in “circumstances of the health and the life” of the mother.

“I think that the lieutenant governor should allow members to make their own decision and be free of any persuasion by his office,” she said. “Just let everybody make individual decisions because this is such an important issue.”

Briggs, a surgeon, said in a phone interview Thursday that his companion bill to HeltonHaynes’ measure, Senate Bill 745, will be regarded as the “toughest, prolife, anti-abortion bill ever presented to the state legislature. There’s nowhere in the Tennessee code … that defines criminal abortion.”

It then lays out what isn’t a criminal abortion in four areas, among them ectopic pregnancies.

“That should never be a criminal abortion,” Briggs said.

He said the bill also describes “futile pregnancies” which he said is where it is impossible for a pregnancy to be carried “anywhere close to viability.” Another area is “molar” pregnancies, in which two sperm go into one egg.

The other language deals with emergencies, one involving fetuses less than 20 weeks, which Briggs said is not viable.

“Then after 20 weeks, a physician must do everything possible to carry the child to where it can survive outside the womb,” Briggs said the language states.

He said one issue is if a woman breaks water, which can sometimes occur in a previable state.