'You perform an abortion at your peril:' Attorney explains how Tennessee's new abortion exception would work

David Raybin
Posted at 5:19 PM, Mar 15, 2023
and last updated 2023-03-15 19:26:58-04

NASHVILLE, Tenn. (WTVF) — A Tennessee bill that would allow for an abortion if the life of the mother is in jeopardy, passed in the House Health committee Wednesday night. It comes after several other attempts to pass abortion exceptions have failed in the Tennessee General Assembly.

To better understand what this proposed bill would do, NewsChannel 5 turned to veteran criminal defense attorney David Raybin.

"It’s very confusing," said Raybin. "The current law creates criminal liabilities for physicians for performing an abortion."

Under Tennessee's current total ban on abortions, doctors who perform the procedure would have to prove their own innocence in court, otherwise known as an affirmative defense. Raybin echoes what even what the Tennessee Attorney General Jonathan Skrmetti has said — that the current wording could open Tennessee up to a litany of lawsuits.

"There has to be some modification of the current law, because it’s indefensible, creates great uncertainty and may be illegal," he said.

House Bill 883, currently moving through the legislature, would allow doctors to perform abortions if the life of the mother was in jeopardy. But Raybin says a new proposed amendment, supported by pro-life lobbying group Tennessee Right to Life, could still subject doctors to criminal charges.

The amendment creates what's called an objective standard, which says a doctor is protected as long as they're acting as any other reasonable doctor would.

"So then the physician could say, I’ll bring in other experts in the area, and the state could bring in their experts, and they could have a battle of experts of whether it was reasonable or not," explained Raybin.

Raybin argues that the amendment would make the law a little less confusing, but it still puts Tennessee doctors in a difficult position.

"I think the message here is — you perform an abortion at your peril. You run the risk of being prosecuted. And if you do, I think the answer there is, you want to make sure you have as much documentation that you consult with other physicians because the test here, and now is reasonable medical judgment," he said.

Tennessee Right to Life says they support the bill because it prevents a doctor from performing an abortion that's simply elective instead of a medical necessity.

House Bill 883 will go next to the House floor for a vote next Monday. The Tennessee Senate has yet to add the same amendment the House just added on.

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