Tennessee’s abortion ban is facing another legal challenge, and it hinges on the law’s ambiguity around medical exceptions.
The Center for Reproductive Rights, local doctors and local patients filed the lawsuit in state court, arguing the ban violates patients’ right to life. They say Tennessee’s medical exceptions are dangerously vague, leaving medical workers weighing the risk of their own imprisonment while deciding whether a patient needs an abortion. The law also lacks exceptions for pregnancies where the fetus has no chance of survival.
The Center for Reproductive Rights is a national abortion access group that has extensively litigated abortion policy. On Tuesday, the organization had a briefing about new lawsuits against three states with bans: Tennessee, Oklahoma and Idaho.
Two Tennesseans, who are plaintiffs in the state’s case, shared their stories during the media event. Both women underwent pregnancies with fetal anomalies; there was no chance of survival because the fetuses hadn’t developed correctly. The pregnancies caused severe medical complications in both women.
“No one should have to endure the emotional and physical pain and risk to their life that I have suffered in Tennessee,” said Nicole Blackmon, one of the plaintiffs. “That law forced me to carry a baby for months that was never going to live, and easily could have killed me.”
She found out she was pregnant last summer, just a few months after her 14-year-old son had died. She had hypertension and a few other serious health issues, but she and her partner decided to move forward anyway.
“From the start, we were excited, but worried at the same time,” she said. “And at 15 weeks, we learned that there was an issue with the baby’s tummy. Then, at 24 weeks, the specialists confirmed that our baby’s organs were not forming as expected or in the right places. Many were outside of our baby’s body. Doctors told us certainly that this pregnancy would result in not a living baby.”
She said that gave her two options: spend thousands of dollars traveling out of state for an abortion, or risk her health carry the pregnancy to term. They couldn’t afford the former, so she persevered through the complications.
“Everything hurt,” she said. “My vision got blurry, and I felt sharp pain when the baby moved. I was told I was at high risk of having a stroke. … My water broke in my seventh month. And after 32 hours laboring, I delivered our baby stillborn.”
Allie Phillips is also a plaintiff in the lawsuit. She learned she was pregnant in November. She went for a routine scan at 19 weeks, and her obstetrician told her there were several issues. A specialist later told her that multiple organs had developed incorrectly or not at all, and the fetus had stopped growing.
“We were told that she had no chance at life,” she said. “I was hysterical. All I could do was ask, ‘What do we do now?’ The doctor said that there were two options: either ending the pregnancy with an abortion or continuing, realizing that (she) wasn’t going to survive.”
She and her husband started a GoFundMe so she could go to New York City for an abortion. Once she got there, she learned the fetus had already died, putting her at risk for blood clots, sepsis and death. That meant she had to undergo a more complicated and urgent procedure.
“I went into surgery alone, and I sat in recovery alone,” she said. “The doctors were kind and compassionate, but I’d never met them before. I had to grieve the loss of my daughter in a city I’d never been to … I shouldn’t have had to leave my lifelong home for basic health care.”
The lawsuit raises several concerns, but one of the focuses is on the scope of medical exceptions. The language is vague, which they argue is especially troubling when physicians face up to 15 years in prison for performing an abortion that is later deemed medically unnecessary.
In addition to ambiguity in its definition of “irreversible impairment” to the pregnant patient, the abortion ban uses the term “reasonable” medical judgment, as opposed to “good-faith medical judgment.” That terminology is stricter and means an expert witness could come to a court hearing and say they disagree with the decision.
“Medical emergency determinations, however, are often complex and inherently subject to disagreement,” the lawsuit states. “Tennessee’s abortion ban can and should be read to ensure that doctors have wide discretion to determine the appropriate course of treatment, including abortion care, for their patients who present with emergent medical conditions — without being second guessed by the Attorney General, the Tennessee Board of Medical Examiners, a local prosecutor, or a lay jury.”
Plaintiffs are asking the court to clarify several of the ambiguities in Tennessee’s law, particularly in pregnancies with complications.
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