Could abortion paperwork force doctors to incriminate themselves under Tennessee's new law?

Attorney: 'no information' on how prosecutors could use data
Report of Induced Termination of Pregnancy Form.jpg
Posted at 4:00 PM, Aug 26, 2022
and last updated 2022-08-26 21:46:20-04

NASHVILLE, Tenn. (WTVF) — With Tennessee's new abortion trigger law now enacted, a nonprofit legal resource center says a decades-old paperwork requirement may force Tennessee doctors to incriminate themselves after performing an abortion.

Tennessee's trigger law bans nearly all abortions in the state. But doctors are given a narrow carve-out for performing abortions to prevent the death of the pregnant woman or to prevent "serious risk of substantial and irreversible impairment" of a major bodily function — facts that the doctor on trial, not the state, must prove.

Since the 1970s, doctors in Tennessee have been required to file a report each time they perform a procedure to end a pregnancy, called a Report of Induced Termination of Pregnancy. The report obscures the name of the patient seeking an abortion, but it requires that the doctor performing the abortion be named.

Chloe Akers, an attorney with the nonprofit legal resource center Standing Together Tennessee, said she fears that state or local prosecutors may be able to seize the abortion paperwork filed with the Department of Health, using it to compile a "dossier" of evidence to charge doctors with felonies.

"These forms in and of themselves prove each element of the crime of criminal abortion," Akers said. "A termination happened, it happened in Tennessee, a physician performed it."

Akers said the abortion paperwork, required to be filed by state law, effectively forces doctors to incriminate themselves — something prohibited by the U.S. Constitution's Fifth Amendment.

Akers said the medical paperwork at issue is relatively unknown outside the medical profession.

"The focus of my organization is educating people on the fact that these forms exist," Akers said. "I don't know of any legislator — any of them — who has ever mentioned this form. I think this form really illustrates what we're all seeing. Which is the consequences of this law are so broad, and it doesn't appear to me that they were considered by the folks passing the bill and signing it into law."

"We have no information right now about how the state will use these forms," Akers said.

The state Attorney General's office could not shed any light on how it would use the forms either, saying in a statement, "we cannot comment on potential scenarios that could be litigated."

There is about to be a changing of the guard at the office of the state's top cop.

Gov. Bill Lee's chief legal counsel, Jonathan Skrmetti, is set to take over for the retiring Attorney General Herbert Slatery on Sept 1. An email to Skrmetti for comment was not immediately returned.

For now, with doctors facing the threat of criminal prosecution, Akers worries the state's abortion law puts doctors between the form and a hard place.

"This puts the doctor and the doctor's patient in a very, very precarious situation," Akers said. "Not only is the doctor being forced — by virtue of wanting to do their job and save their patient — to commit a crime, but the doctor's hospital is also forced to effectively report that crime to a division of the state of Tennessee."