However, Tennessee’s law, like the partially enjoined law in Idaho, does not contain any provision for decriminalizing abortion, regardless of the medical circumstance, whether by exclusion of certain procedures from the definition of abortion or through an exception in cases of risk to maternal health. Instead, the law contains only a narrow affirmative defense that must be proven by a provider by a preponderance of evidence and which never functions to shift the burden back to the state.
As Senior Federal District Judge B. Lynn Winmill recently pointed out with respect to Idaho’s law, “[a]n affirmative defense is an excuse, not an exception. The difference is not academic. The affirmative defense admits that the physician was justified and is therefore legally blameless. And it can only be raised after the physician has already faced indictment, arrest, pretrial detention, and trial for every abortion they perform.” As a result, the law “makes it impossible to provide an abortion without also committing a crime.”
In addition to fact that Tennessee’s law is structured without any exception for abortions performed out of medical necessity, the affirmative defense itself is extraordinarily vague and ambiguous, requiring a provider to prove to a jury that the abortion in question was necessary either to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.” Importantly, this affirmative defense is different from the statutorily recognized defense of self-defense: Under the law, once self-defense is fairly raised by the facts, the burden shifts back to the state to prove, beyond a reasonable doubt, that the defendant did not act in self-defense; under the trigger ban, the burden never shifts back to the state and instead remains squarely on the defendant throughout the trial.
However, because these terms are not defined in the law, it is unclear what situations are contemplated in terms of necessity. For example, the law does not provide any insight into what circumstances make a risk “serious” or what distinguishes a “major” bodily function from a minor bodily function. Likewise, there is no direction as to how to measure these considerations—it is in degrees of pain or seriousness of prognosis? What about the intersection of a patient’s underlying health history and its impact on this analysis? Is something that is considered a minimal risk for one patient considered a serious risk for another if one patient is diabetic? Is there a time limit to “irreversible” impairment? Does that mean an impairment that is never reversed? What if the condition may ease with time? What if that time is six months or 15 years? What if the condition could be reversed in the future, but reversal is not certain or immediate? The questions are endless.
The reality is that medical decision making is not always a clear path. Doctors must advise patients understanding that their conversations rarely involve certainty and almost always require analysis in degrees of risk and unknown outcomes. In this respect, the law and medicine are quite similar. Both rely on experience and expertise to generate possibilities and potential courses of action knowing there is never one right answer.
Given the structure of Tennessee’s law, including its lack of exception and vague affirmative defense, healthcare providers are being put in the untenable position of choosing between doing their jobs and committing a crime. If the law is not changed to reflect the complexity, nuance, and humanity of the subject matter it seeks to legislate, Tennessee will lose one of its most valuable resources—its healthcare providers.