This article appeared first in Pro Publica
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In Tennessee, Republican lawmakers are considering whether patients should be forced to continue dangerous pregnancies, even while miscarrying, under the state’s abortion ban — and how close to risking death such patients need to be before a doctor can legally intervene.
At a legislative hearing last week, a lobbyist who played a dominant role in crafting the state’s abortion legislation made his preference clear: A pregnant patient should be in the process of an urgent emergency, such as bleeding out, before they can receive abortion care.
Some pregnancy complications “work themselves out,” Will Brewer, who represents the local affiliate of the anti-abortion organization National Right to Life, told a majority-male panel of lawmakers Feb. 14. When faced with a patient’s high-risk condition, doctors should be required to “pause and wait this out and see how it goes.”
Top Republicans like Gov. Bill Lee have defended the state’s abortion law, one of the strictest in the country, as providing “maximum protection possible for both mother and child.” But currently, the ban has no explicit exceptions, not even for the pregnant patient’s health.
It only includes an “affirmative defense” for emergencies, a rare legal mechanism that means the burden is on the doctor to prove abortion care was necessary because the patient risked death or irreversible impairment to a major bodily function.
The penalties for getting it wrong are three to 10 years in prison and up to $15,000 in fines. Doctors could expect to lose their medical license just for being charged. Concern over how the unprecedented law will be interpreted by prosecutors and the courts has already resulted in patients with high-risk conditions having to rush across state lines for care.
Some Republicans are proposing a modest change. An amendment to the law introduced in the House Population Health Subcommittee last week would remove the affirmative defense and clarify that it is not a crime to terminate a pregnancy to prevent an emergency that threatens the pregnant patient’s life or health, among other provisions.
“No one wants to tell their spouse, child or loved one that their life is not important in a medical emergency as you watch them die when they could have been saved,” said Republican Rep. Esther Helton-Haynes, a nurse and the bill’s sponsor.
But the word “prevent” is a sticking point for the anti-abortion groups who wrote the law.
“That would mean that the emergency hasn’t even occurred yet,” Brewer told the committee. He made a distinction between immediate, urgent emergencies — “A patient comes into the ER bleeding out” — and what he calls “quasi-elective” abortions.
Brewer, who has no medical experience, defined those as “abortions that aren’t necessary to be done in the moment but are still performed in an effort to prevent a future medical emergency.” He called for an “objective” standard.
When reached for comment, Brewer said his statements as summarized by ProPublica had been mischaracterized but did not provide additional details. “Ending the life of the baby should not be used as treatment for non-life-threatening conditions or to prevent some unknown possibility in the future,” he said. He did not respond to follow-up questions seeking clarification.
The American College of Obstetricians and Gynecologists said laws that try to limit or define medical exceptions are dangerous because they interfere with a doctor’s ability to assess fast-moving health indicators in unpredictable situations and don’t account for people’s different thresholds for risk.
Kim Fortner, a maternal-fetal medicine specialist practicing in Tennessee for more than 20 years, testified to the committee and pushed back on Brewer’s characterizations. She described a patient she saw recently whose water broke too early — the fetus still had a heartbeat, but there was virtually no chance it would survive and a very high risk the patient would get an infection.
But because of the law, the woman was sent home without the option of abortion care. She came back with emergency bleeding and sepsis, a life-threatening infection.
“It is not always so clear, and things don’t always just work themselves out,” Fortner said. “It is a significant, in my mind, misuse of resources, if she did not need to have six units of blood that could have gone to the trauma victim or the gunshot wound. Blood is a limited resource. Just because she can wait and come back in and she still lives to talk about it today — one, that won’t always happen, and two, it also is a significant misuse of an ICU bed. It is a preventable occurrence.”
Andy Farmer, a Republican state representative, agreed with her.
“These things need to be addressed early on,” he said, adding that he didn’t want doctors to feel they needed to consult a lawyer before offering care that could stop a condition from progressing into an emergency.
Brewer, however, said he believed giving doctors that kind of power would be too subjective. “Once one doctor is let off the hook in a criminal trial, it would be open season for other doctors who wanted to perform bad faith terminations,” he said.
Brewer’s position appears to be out of step with public opinion on abortion, even in a deeply red state. A recent poll found about 75% of Tennesseans support abortion exceptions, including for pregnancies caused by rape and incest.
Yet his organization exerts outsize influence on Republican state politics. Tennessee Right to Life issues an annual scorecard rating lawmakers on their fealty to “pro-life” positions and plows money into primary campaigns to unseat candidates viewed as insufficiently loyal. Already, they retracted the endorsement of one Republican lawmaker who publicly advocated for clear medical exceptions.
Signs of frustration emerged over the course of the hearing as lawmakers grilled Brewer on how his preferred positions may harm pregnant patients and accused him of trying to intimidate legislators.
“You’ve made a statement that you are fine with the current trigger law as it is, and nothing more needs to be done,” said Republican state Rep. Sabi Kumar, a retired surgeon, referring to the state’s abortion ban. “Did you believe that?”
Brewer responded: “That is our most preferential position, although we would accept an objective standard.”
Kumar said he was surprised Brewer did not appear to be taking into account other changes the bill addresses that are not in the current law, such as exceptions for cases of fatal fetal anomalies, where a baby is not expected to survive, and ectopic pregnancies, which implant outside the uterine cavity, are non-viable and can lead to rupture and death.
“Those things need to be corrected,” he said. “In the face of that, it is difficult for you to say that that is your preferential thing.”
Kumar also asked Brewer to consider the plight of doctors. Physicians carry malpractice insurance, but Kumar noted it doesn’t cover costs associated with criminal charges, which can be financially ruinous. Kumar didn’t think they should be threatened with prison time for acting to avoid an emergency.
“I would have liked to see you, as a friend, be as concerned about a physician who was under that degree of emotional stress and pressure, trying to save the life of a baby and worried about being prosecuted,” he said. “I would have liked you to be gushing with sympathy for that.”
He and others pointed out that the bill’s changes would not affect the vast majority of pregnancies, where abortion would continue to be outlawed. The bill explicitly states abortions are prohibited for mental health reasons, such as a patient threatening suicide, and it has no provisions allowing abortion for pregnancies due to rape or incest.
But Brewer suggested that lawmakers who vote in support of the bill might stand to lose the endorsement of Tennessee Right to Life.
“I would not consider this a pro-life law,” Brewer said. “And in discussions with our [political action committee], they have informed me that they would score this negatively for those members that wish to vote for it.”
Brewer’s invocation of the anti-abortion group’s scorecard provoked a strong response. As the hearing wrapped up, Tennessee’s House speaker, Cameron Sexton, appeared in the chamber.
“Something happened that I’ve never experienced in my time down here, which was somebody on a committee testifying tried to intimidate our members by telling them they’re gonna score them a vote,” he said. “You can have those conversations in your room, you can have those conversations in email. But to do it in the committee — to try to intimidate this committee to go a certain direction — is uncalled for.”
The rare public rebuke of an anti-abortion activist by a top Republican lawmaker may be a sign of growing GOP support for the modest amendments to the law. However, the bill’s path is not guaranteed. It will need to pass in three more committees before reaching final votes in the state’s House and Senate.
Republican state Rep. Bryan Terry’s reaction provided a preview of potential challenges ahead. He was the only member of the committee to vote against the amendment, and he leads the House Health Subcommittee, where the bill is headed next week.
In an email to ProPublica, Terry said that he does want to see changes to the law, but that the word “prevent” would need to be removed or redefined in the measure before he could consider voting for it.
“There are a multitude of medical emergencies that can occur during a pregnancy, but they usually never materialize,” Terry, who is an anesthesiologist, said. “A concern with the current amendment language is that an abortion could be performed in an instance when it wasn’t ‘medically necessary treatment.’”
ProPublica followed up to ask if he would consider conditions such as premature rupture of membranes, preeclampsia, cancer or heart conditions “medically necessary” reasons for abortions. He did not respond.
Three days after the hearing, Tennessee Right to Life sent a “legislative alert” obtained by ProPublica to its members, calling on them to oppose the bill at the next hearing.
The email described changes in the bill as “loopholes” making the current law “unenforceable.”
“Tragically, some pro-life legislators are currently supporting this bill,” the email read. Below, it listed the nine lawmakers who voted in favor of it.
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