Court hears challenge to Tennessee abortion ban for those with health risks

A national reproductive rights organization urged a Nashville court Thursday to block Tennessee’s near-total abortion ban for people with dangerous pregnancy complications.

The court hearing was the most comprehensive over Tennessee’s abortion ban to date.

The three-judge panel on the case has not yet ruled.

Lawyers from the Center for Reproductive Rights representing seven women denied abortions and two obstetricians argued that the exception in Tennessee's abortion ban that permits abortions to save the pregnant person's life or prevent serious injury is so vague that physicians are not performing medically necessary abortions that may actually have been legally permitted.

Linda Goldstein, an attorney for the plaintiffs, said Thursday afternoon that the vagueness of the exception is creating a chilling effect by “sowing confusion throughout Tennessee’s medical community,” adding that it “seems calculated to deter care and intimidate physicians.” Goldstein urged the judges to look beyond the words of the exception and analyze how it is being applied.

“This court is not obligated to close its eyes as to whether the statute is working or not,” she said.

Whitney Hermandorfer, director of the Tennessee Attorney General’s Office strategic litigation unit, said the addition of the medical exception, created nearly a year after the ban was put in place, was a “physician friendly development” and gives doctors the necessary leeway that plaintiffs claim is lacking.

She argued the plaintiffs had not met the necessary burden to prove the medical exception is unconstitutionally vague, which Hermandorfer said is a “very high hurdle to clear.”

Tennessee's near-total abortion ban went into effect in August 2022 after the U.S. Supreme Court abolished the right to an abortion. The Tennessee General Assembly in April 2023 created a medical condition exception to the ban, which allows physicians to perform an abortion if they determine “using reasonable medical judgment” that abortion is necessary “to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” Under the ban, convicted physicians face criminal penalties up to 15 years in prison, $10,000 in fines and having their medical license revoked.

The Center for Reproductive Rights sued Tennessee, the attorney general and two state medical boards in September 2023 on behalf of a group of obstetricians and women who endured health risks after they were denied abortions in Tennessee.

Several plaintiffs were present at the hearing in the jury assembly room of the Historical Metropolitan Courthouse. They included Allie Phillips, who was denied an abortion in Tennessee despite receiving a fatal fetal diagnosis. Phillips traveled to New York and discovered her unborn daughter — a term Phillips uses — had already died and received an abortion.

“If I wasn’t in New York when this happened, I don’t know if I’d be sitting here,” Phillips said.

Phillips is a Democratic candidate for the Tennessee House of Representatives in Montgomery County.

Other plaintiffs were denied abortions by physicians who did not perform an abortion despite their thinking it was medically necessary out of fear of prosecution or belief they were not allowed to do so.

Chancellor Patricia Head Moskal, Judge Sandra Donaghy and Chancellor Kasey Culbreath heard two motions Thursday: the plaintiffs’ request to temporarily block the law while the case proceeds and the defendants’ request to throw the case out.

Phillips said it was important that others don’t have to go through what she did.

“I know what it did to me mentally, emotionally and physically,” Phillips said. “It wasn’t the abortion that made me feel this way. It was the fact that I had to jump through different hoops and hurdles and navigate this entire experience by myself, without help from my health care, doctors, anybody.”

Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.

This article originally appeared on Nashville Tennessean: Tennessee abortion ban: Court hears arguments about medical exception