The Commercial Appeal

HB 883 ‘Good faith’ to ‘reasonable’ medical judgment

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House sponsor Rep. Esther Heltonhayn­es, R-east Ridge, initially filed a bill that allowed doctors to make an abortion call under their “good faith” medical judgment. But following opposition from Right to Life, Helton-haynes changed the language to the “reasonable” medical judgement, which doctors say still leaves them open to criminal prosecutio­n.

The new version of the bill also stripped language to allow abortions in the case of fatal fetal anomalies, such as when a fetus’ heart grows outside of the body, which Right to Life has opposed. Right to Life supported the new version of the bill.

Helton-haynes’s goal was to remove the affirmativ­e defense portion of the current abortion ban, the representa­tive said. Under affirmativ­e defense clause, a doctor performing any abortion knowingly commits a Class C felony, even if they were not ultimately prosecuted.

“This bill provides better clarity and returns to the normal judicial system practice of innocent until proven guilty,” Helton-haynes said Monday night. “It protects the life of the mother and the life of the baby.”

Right to Life lobbyist Will Brewer had previously told lawmakers the group opposed bill language that left “subjective” decisions up to doctors, as some medical emergencie­s will “work themselves out.”

Multiple Tennessee doctors have gone public in opposition of the law, arguing Right to Life’s characteri­zation of medical practice is ill-informed and dangerous to ethical medical practice.

“There has been a tremendous burden on members of the medical community,” said doctor and Rep. Sabi Kumar, R-springfiel­d, of the current law. Kumar supported stripping affirmativ­e defense from the law. “Physicians who are on the frontline of making difficult decisions can act in the best interest of the mother and the baby.”

Rep. Gloria Johnson, D-knoxville, said she’s trusted the “good faith” decisions of her physicians for 60 years, and she criticized the move to strip the goodfaith standard from the bill.

“The doctor’s risk goes down as the woman, the patient’s risk, increases. Is this a relationsh­ip we want to encourage, where the sicker and more endangered the woman’s life is, the doctor’s risk is less?” Johnson asked. “I don’t think this is what Tennessean­s want to see.”

Republican­s on Monday voted down an effort by Johnson to amend the bill to allow rape and incest exceptions for minors, asking her colleagues if Tennessee really wants to be a state that “forces children to carry pregnancie­s.” A previous effort to add rape and incest exceptions failed to advance in committee earlier this year.

“Eighty percent of Tennessean­s support the legalizati­on of abortions with exceptions,” Johnson said, citing a Vanderbilt University poll released last year. “This amendment is what the vast majority of Tennessean­s want. Why are we answering to lobbyists instead of our constituen­ts?”

Johnson has been an outspoken opponent of Tennessee’s current law and has called for broad access to abortion services. In emotional testimony before a House committee last week, she shared her story of terminatin­g a pregnancy in her early 20s due to health complicati­ons.

The amended bill also proposes the Department of Health issue quarterly abortion reports to the governor and General Assembly on the number of procedures performed. This data has been collected by the Department of

Health for years in Tennessee.

Rep. G. A. Hardaway, D-memphis, voted in favor of the bill along with several other Democrats, but Hardaway noted it leaves many people behind, including “little girls who will suffer psychologi­cal trauma” who become pregnant from sexual assault.

“This is a step. It’s not sufficient,” Hardaway said. “We’ll still be honoring the wishes of rapists and incestuous relationsh­ips, as opposed to respecting the dignity of women.

“I’m going to vote for the bill, not because I support it, but because it’s better than nothing.”

Nine Democrats and two Republican­s voted against the bill, with two additional Republican­s recorded as present, not voting.

Anti-abortion group sought to preserve ability to prosecute doctors

It’s not yet clear if the Senate sponsor, Sen. Richard Briggs, R-knoxville, will amend his bill to match the House version. Briggs, a physician, was one of the first lawmakers to call for changes to the state’s ban, alongside the Tennessee Medical Associatio­n and the University of Tennessee medical school.

The Senate Judiciary Committee was expected to consider Briggs’ bill, in addition to several other exception-related proposals, on Tuesday afternoon but pushed it to Wednesday’s committee calendar. The committee has rolled the bills multiple times in recent weeks as Senate Republican­s have struggled to get the votes necessary to advance any exceptions legislatio­n.

Briggs faced strong blowback from Right to Life last fall. The group’s political action committee pulled its endorsemen­t of the senator when he went public with his concerns about the trigger ban. Briggs called the move a “shot across the bow” to other Republican­s as Tennessee’s

Briggs, who voted for the Human Life Protection Act in 2019, told The Tennessean last year he didn’t fully understand how the affirmativ­e defense would work and that the law, which was immediatel­y blocked by courts at the time, was largely hypothetic­al before the U.S. Supreme Court last summer overturned the landmark Roe v. Wade decision.

In recorded comments Brewer made to a West Knox Republican Club earlier this month, Right to Life’s Brewer said the group continues to oppose Briggs’ Senate bill with the original good faith standard because it would be too difficult to prosecute a doctor if the law was changed.

“It is nearly impossible to prosecute somebody for what they, as an individual, believe was right in the moment,” Brewer said. “I’m not talking about the majority of doctors. I’m talking about a doctor who makes up a reason to abort a pregnancy when the mother’s life wasn’t really at risk. If that doctor is ever found out and pressed with charges, no DA could successful­ly prosecute that doctor under this law because you can’t get in somebody’s head in the moment.”

Dr. Heather Maune, an obstetrici­an/ gynecologi­st practicing in Nashville, watched the House vote from the Capitol gallery on Monday night after lobbying lawmakers to support the previous good faith medical judgement standard rather than the Right to Life-supported language.

“Unfortunat­ely, some strong, wellfunded special interest groups, who do not respect the patient-physician relationsh­ip and who disregard the suffering this law has already inflicted, would prefer to see mothers teeter on the brink of death or severe illness before physicians are allowed to intervene,” she said. “This is unethical and dangerous. It is only a matter of time until someone, possibly a mother who already has children, loses their life.”

Reach Melissa Brown at mabrown@tennessean.com.

 ?? NICOLE HESTER/THE TENNESSEAN ?? Rep. Esther Helton-haynes, R-east Ridge, presents HB 883 during a House session at the Tennessee state Capitol in Nashville, Monday. The House passed the legislatio­n, which adds exceptions to the state's strict abortion ban.
NICOLE HESTER/THE TENNESSEAN Rep. Esther Helton-haynes, R-east Ridge, presents HB 883 during a House session at the Tennessee state Capitol in Nashville, Monday. The House passed the legislatio­n, which adds exceptions to the state's strict abortion ban.

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