A panel of three judges listened to arguments on Thursday regarding the dismissal of a lawsuit that challenges Tennessee’s abortion ban. Additionally, there was a motion to block a portion of the ban being discussed.
The case originated from a lawsuit brought by seven women and two doctors against the state regarding its abortion bans. Currently, the judges are carefully examining a motion to dismiss the lawsuit and a motion for a temporary injunction specifically concerning the ban’s impact on pregnancy complications that are potentially harmful.
Tennessee joined the ranks of 14 states that have halted almost all abortion services following the overturning of Roe v. Wade by the U.S. Supreme Court in August 2022.
In the state, performing or trying to perform an abortion is considered a Class C felony.
The panel, comprising three women, has announced that it will not make a ruling on Thursday. They will provide a written ruling once they have thoroughly reviewed the case.
The lawsuit claims that the women were denied essential and potentially life-saving medical treatment due to the fear of penalties imposed by the ban. The Tennessee attorney general and state board of medical examiners are also implicated in the lawsuit.
The state asserted that the ban’s wording was unambiguous, refuting assertions that doctors are uncertain about what qualifies as legal abortion care.
Whitney Hermandorfer, a lawyer with the Tennessee attorney general’s office, responded to a question from judges in court regarding affidavits submitted by physicians in the case. She emphasized that the uncertainty expressed by a few doctors about the definition of “serious risk” does not imply vagueness in the eyes of the law.
The state has put forward the argument that the plaintiffs in the lawsuit are not currently experiencing the medical emergencies mentioned in the suit or actively seeking emergency care. Therefore, they argue that the plaintiffs lack the necessary grounds to file the lawsuit, as they are seeking relief for hypothetical future scenarios.
“In court, Hermandorfer argued that although the past health circumstances are unfortunate, they do not serve as a valid legal justification to invalidate the medical exception under consideration.”
In Tennessee, a law was enacted last year that permits abortions in limited circumstances. These include cases of molar pregnancies, ectopic pregnancies, removal of a miscarriage, or when the life of the mother is at risk. The motivation behind this law was to address concerns expressed by physicians and advocates.
The trigger law did not include an exception, but it did provide an affirmative defense for physicians facing prosecution for providing an abortion. Under this defense, physicians could justify their actions by arguing that the abortion was necessary to prevent death or serious injury. However, it’s important to note that this defense would only come into play during a criminal trial after a physician has been charged with a felony and their license has been suspended.
Judge Patricia Head Moskal, a chancellor in the case, raised concerns about the assurances made by prosecutors regarding the non-prosecution of certain cases. She pointed out that there is no guarantee that the district attorney would refrain from prosecuting based solely on their statements. Judge Moskal emphasized that district attorneys are elected officials and their positions can change periodically.
The state, in response, countered the assertion that the law infringed upon the right to life clause of the state constitution, highlighting the presence of an exception to the ban.
Plaintiffs’ attorneys argue against dismissing suit
According to attorney Marc Hearron from the Center for Reproductive Rights, the state’s assertion that the patients are not affected persons due to the absence of criminalization for women seeking abortion care is being challenged. Hearron argues that the plaintiffs are directly impacted by the denial of their healthcare.
Hearron expressed disbelief at the audacity of their argument, stating, “I can’t understand how they can make that claim without any hint of hesitation.”
According to Hearron, the enforcement of Tennessee’s abortion ban directly impacts the physician plaintiffs. It dictates the medical care they can administer to their patients and poses a threat of imprisonment, fines, and revocation of their medical license if they violate the law.
According to Hearron, if at least one of the plaintiffs has standing in a case, there should be no doubt about the court’s jurisdiction.
Hearron argued against the state’s assertion that no charges have been filed against physicians for violating the ban, emphasizing that physicians are indeed at risk of enforcement. He further contended that the implementation of the law itself constitutes a governmental action.
The plaintiffs’ attorneys also claimed that the revocation of medical licenses would cause harm to the physicians’ property, thus giving them the right to proceed with the lawsuit.
The lawyers further claimed that patients in the state are being denied the abortion care that they are constitutionally entitled to receive.
Attorneys from the Center for Reproductive Rights further contended that the exception law’s language is equally as ambiguous as the original statute. They also pointed out that the language can be interpreted in various uncertain ways.
According to Linda Goldstein, the senior counsel at the Center for Reproductive Rights, the interpretation of “serious and substantial risk” to a patient’s life and health can vary among different individuals.
The attorneys presented their arguments, highlighting four factors that contributed to the linguistic vagueness in the law. These factors included the use of nonmedical language, ambiguous terminology, lack of indication of timing, and the standard of reasonable medical judgement.
“In court, Goldstein expressed that the combination of these factors has left physicians uncertain about the appropriate course of action.”
According to Goldstein, individuals who are sentenced to 15 years in prison should be fully aware that their actions are in clear violation of the law.
In a recent case, Goldstein highlighted the situation of Kate Cox, a woman from Texas who took legal action in order to obtain an emergency abortion for a pregnancy with a serious anomaly. This example sheds light on the ethical challenges that doctors are currently confronted with.
After being granted permission by a trial court to undergo an abortion, the Texas Supreme Court intervened and reversed the decision, ultimately denying her the right to terminate her pregnancy. As a result, she had to travel outside of the state in order to receive the necessary medical care.
Arguments over preliminary injunction
During a second hearing on Thursday afternoon, the plaintiffs’ attorneys put forth their arguments for a preliminary injunction. This injunction would serve as a temporary and partial block on the enforcement of the ban while the legal case continues. The focus of their arguments was on medically necessary abortions.
Goldstein stated that the defendants have not made a definitive statement assuring physicians that they will not be prosecuted for treating patients with serious health risks or providing preventive care.
“The physician’s fears about prosecution are further intensified by the fact that no defendant is willing to go on record regarding these significant issues,” Goldstein explained.
Goldstein challenged the testimony provided by the physicians on the state’s witness list, pointing out that none of them currently practice under Tennessee’s abortion ban or serve on physician committees responsible for reviewing requests for abortions.
The plaintiffs’ attorneys have requested the court to ensure that any assistance provided extends beyond the physicians and patients involved in the case, and also covers all pregnant individuals in Tennessee.
According to Hermandorfer, the opposing side fails to acknowledge the fact that when they refer to abortion care, they are discussing the termination of another life.
The lawsuit
The Center for Reproductive Rights has filed a lawsuit seeking clarification on the medical exception in the abortion ban. They are requesting a declaration that outlines the circumstances in which physicians can legally provide abortion care.
The Center for Reproductive Rights is urging the court to grant physicians the ability to make decisions based on their own “good faith judgement” and in consultation with their patients when faced with medical conditions or complications during pregnancy that could jeopardize the mother’s life. This includes situations where the pregnancy worsens existing medical conditions, conditions that cannot be adequately treated while pregnant or necessitate repeated invasive interventions, as well as cases involving fatal fetal anomalies.
The lawsuit maintains that the Tennessee constitution’s due process and equal protections clauses are violated by the exception to the abortion ban concerning emergency medical conditions. It further argues that the law is unclear and unconstitutional for physicians, who are unsure about the specific care that would meet the exceptions.
According to several doctors interviewed by ABC News, they dispute the claims made by politicians, including Gov. Bill Lee, that the ban on abortion allows for exceptions in cases where the pregnancy poses a threat to a woman’s life or could result in serious bodily injury.
The plaintiffs’ stories
When Blackmon was 15 weeks pregnant, she received devastating news about her baby’s health. The diagnosis was fatal, presenting a difficult situation for her. Unfortunately, due to financial constraints, she was unable to afford the costly journey to another state for abortion care. As a result, she had no choice but to carry the pregnancy to term, despite the risks it posed to her own well-being. Tragically, she ultimately gave birth to a stillborn baby, as detailed in the lawsuit.
After Tennessee implemented the ban, Phillips mentioned that her doctor informed her that she couldn’t provide any guidance on accessing abortion care. Consequently, the couple conducted their own research and scheduled an appointment at a New York abortion clinic the following week. Upon arrival, Phillips received the heartbreaking news that her baby’s heartbeat had ceased. Due to the risk of severe blood clots, infection, and sepsis, she required immediate emergency care.
In November 2022, Kaitlyn Dulong discovered that she was pregnant. However, she was diagnosed with cervical insufficiency, which meant that she would eventually lose the pregnancy. Unfortunately, she did not receive abortion care until 10 days later. By that time, her cervix had been dilated, she had lost all her amniotic fluid, and the fetus’ body was in the vaginal canal, as stated in the lawsuit.
Monica Kelly found out that her fetus had Trisomy 13, a severe fetal condition, when she was 12 weeks pregnant. Her doctors informed her that the baby was unlikely to survive birth or would pass away shortly after birth. They also warned her that continuing the pregnancy could put her at risk of preeclampsia and infection. As a result, she made the decision to travel to Florida for abortion care.
Kathryn Archer discovered that her fetus had severe fetal anomalies at 20 weeks of pregnancy. The anomalies included irregular brain development and improperly developed organs, making it unlikely for the fetus to survive birth. In order to receive the necessary care, she sought assistance from an abortion fund and traveled to Washington, D.C.
Rebecca Milner faced a critical situation when she experienced pre-term premature rupture of membranes at 20 weeks into her pregnancy. This condition posed a threat to both her pregnancy and her own life, as it increased the risk of a severe infection. Despite seeking abortion care in Virginia, she unfortunately still developed an infection due to a delay in receiving proper treatment. As a result, she had to undergo treatment for sepsis upon her return to Tennessee.
Rachel Fulton and her husband discovered during an ultrasound that there were concerning issues with the development of their baby’s nervous system, lower spine, lungs, abdomen, feet, and hands. Additionally, there was fluid buildup in tissues and organs, posing a significant risk to both the mother and the baby. In order to access the necessary abortion care and avoid further complications, Rachel and her husband made the decision to drive to Illinois.
Physicians Heather Maune and Laura Anderson, along with their patients, have filed a lawsuit seeking clarity in order to continue providing care.
