Bringing Medical Precision to the Trigger Law in Tennessee

D. Joy Riley, M.D., M.A.
Executive Director

The abortion debate is heating up in Tennessee – again. Why? Abortion was legal in the state for many years until recently.  In 2019, Tennessee passed an abortion “trigger” law that would become effective 30 days following the overturning of Roe v. Wade – which happened in 2022. The Human Life Protection Act became the law of the State, and abortion is now illegal. Not everyone is pleased with this state of affairs, so amendments to the law are being considered this week.

Suddenly, it seems, health care professionals and others are interested in this law. Questions have surfaced, and learned people have provided thoughtful responses (see here and here). What constitutes an abortion? Does treating an ectopic or molar pregnancy constitute an abortion?  What is an “affirmative defense,” which is part of the Human Life Protection Act? While this article does not purport to offer either medical or legal advice, the intent is to provide some thoughtful, reasoned recommendations to the debate:

1) Restrict the definition of abortion to intentional embryocide/feticide – that would mean the intentional killing of an embryo (up to eight weeks’ gestation) or a fetus (unborn baby after eight weeks’ gestation). Death of the embryo or fetus is the intent of the procedure.

2) Recognize that the goal in treating conditions such as miscarriages, blighted ova (anembryonic pregnancy), ectopic pregnancies, or molar pregnancies is not the intentional death of the embryo/fetus.

3) Realize that while there are rare conditions in which separation of mother from baby may need to occur in order to save the mother’s life (an excellent list is here: J. Wright, What is NOT an Abortion? Issues Law Med. 2022 Fall;37(2):175-178. PMID: 36629765), there is no condition that necessitates the dismemberment of the living child in utero.

4) Previously, the “health” of the mother has been used to promulgate a vast array of reasons: “physical,emotional, psychological, familial, and the woman\’s age” that elective abortion should be made—and was made—available. That originated in Doe v. Bolton, the 1973 companion decision of Roe v. Wade.

5) An “affirmative defense” allows a defendant to provide additional facts that, if true, would excuse, in whole or in part, the defendant’s liability. The inclusion of an “affirmative defense” is generally thought to be beneficial. Physicians have long known that their chart entries can end up in a courtroom. When one knows that s/he may in the future need to prove that a procedure previously done was warranted, it adds a level of gravitas to the decision(s) made. Perhaps that is why the law was crafted with this inclusion?

6) Remember that those individuals, businesses, or medical organizations who have promoted abortion in the past, or promote it now, have vested interest in seeing abortion codified in Tennessee law.  As amendments to the Human Life Protection Act are considered this week in the Tennessee legislature, we need to be mindful of the forces that come to bear upon the proceedings. You may want to contact your representatives to communicate your concerns.