Lawmakers: Tennessee AG has legal concerns over abortion ban

Lawmakers say Tennessee’s top legal chief has voiced concerns about the legality of the state’s current abortion law

Jonathan Mattise,Kimberlee Kruesi
Monday 27 February 2023 21:48 GMT
Abortion Tennessee
Abortion Tennessee (Copyright 2022 The Associated Press. All rights reserved.)

Lawmakers say Tennessee's top legal chief has voiced concerns about the legality of the state's abortion law, adding an extra layer of urgency among some Republicans to insert exemptions into one of the strictest bans in the country.

According to House Speaker Cameron Sexton, Attorney General Jonathan Skrmetti advised lawmakers that proposed changes to the so-called trigger law would better protect it from court challenges. And Sen. Richard Briggs, who joined a recent teleconference with Skrmetti and lawmakers, said the attorney general has "concerns" about the existing law.

Both Republicans noted that Skrmetti cited court action in Idaho, where a judge blocked a similar “trigger” law.

Republican-led Tennessee remains heavily split over whether to tweak the abortion ban, even as public polling shows support for clear exemptions. Lawmakers approved the law in 2019, to take effect only if Roe v. Wade were overturned. The law kicked into effect following the Dobbs decision that struck down the federal constitutional right to an abortion.

Elizabeth Lane, a spokesperson for Skrmetti’s office, declined to comment to The Associated Press.

Tennessee has no explicit exemptions in its abortion ban, but includes an “affirmative defense” for doctors. This means the burden is on the physician to prove that an abortion was medically necessary to save the mother’s life or to spare her from irreversible, severe impairment, instead of requiring the state to prove the opposite.

Tennessee’s abortion ban has yet to face a lawsuit, but it’s possible vulnerability in court is a growing concern among some Republicans.

Blowback about the risks women face under the abortion ban has spawned a variety of Republican-backed proposals in Tennessee, including extended Medicaid coverage for pregnant women and parents, and a proposed sales tax break on diapers and baby formula.

Briggs, a physician, said Skrmetti shared insights with lawmakers in a teleconference Thursday.

“I think it would be fair to say that he has concerns about the trigger bill," Briggs told the AP. “And he believes that the bill that we have … focuses a lot clearer on what is a criminal abortion and what isn’t a criminal abortion, and makes it easier to focus when someone does something wrong, and on the other hand, also to get protections when people are doing things right.”

Briggs noted that Skrmetti brought focus to the ongoing lawsuit in Idaho. Briggs said his bill also clears up the affirmative defense "gray areas," which he said are the biggest problem with the trigger law.

Sexton told reporters Thursday that Skrmetti has signed off on the abortion exemption bill to protect the life of the mother.

“I would say we worked with the AG’s office. And so the AG has signed off on the language as well,” Sexton said. “And they believe that this is a stronger bill to defend in court than the trigger law. And if you saw Idaho, there’s concerns with affirmative defense based on the Idaho decision.”

Last year, the U.S. Department of Justice challenged Idaho’s restrictive abortion law, arguing that it conflicted with a federal law requiring doctors at Medicare-funded facilities to provide emergency medical care to pregnant women, even if that treatment includes abortion.

Idaho’s abortion ban also includes an “affirmative defense” section that subjects physicians to prosecution for providing any abortions, even if it was needed to protect the health of a pregnant patient. A federal judge has banned Idaho from enforcing the ban in medical emergencies at Medicare-funded facilities.

Separately, Rep. Tom Leatherwood, vice chairman of the House Health Committee set to consider the bill this week, told the AP that he was among the members who met with Skrmetti. Leatherwood confirmed there was discussion about the law's “affirmative defense” and the Idaho case, but did not specify what the attorney general said.

Other Republicans — including Gov. Bill Lee and Senate Speaker Randy McNally — have said they see no need to change the law, echoing the influential Tennessee Right to Life group.

Lee continues to argue that the affirmative defense protects mothers.

“I'm satisfied with the law as it stands," Lee told reporters Thursday. "I know it does those things, protects the unborn and protects women in those situations. We'll see where the Legislature goes with it.”

Briggs, meanwhile, has said his legislation wouldn't save the lives of babies who would almost certainly die within hours of birth. He said his bill protects the mother from several complications — including infertility and death — that could follow if doctors deliver the baby to avoid the risk of a felony charge under the current law.

"What you’re going to be doing is you’re risking mothers’ lives and you’re risking mothers’ ability to have children in the future, and you’re also risking her children at home having to grow up without a mother, and I think that’s pretty severe. Quite frankly, I think it’s an anti-family bill,” Briggs said.

Democratic Sen. London Lamar said Skrmetti explained the bill on a recent call with lawmakers. She said Skrmetti also advised a meeting of Democrats that his job is not political, but that he must defend the laws and ensure they don't violate federal laws.

Lamar said Skrmetti has not talked with her about his concerns over the life and health of the mother in the current law.

Lamar said her opposition to the law hits close to home, after she had a near-death experience because of pregnancy and lost her child.

“It's going to kill women like me, who may experience complications when it comes to pregnancy,” Lamar said.


Rebecca Boone in Boise, Idaho, contributed to this report.

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