Tennessee case challenges abortion ban: 3 takeaways from arguments

A three-judge panel in Tennessee heard arguments Thursday in a case seeking to have the state’s near-total abortion ban declared unconstitutional. 

The nine plaintiffs include seven women who say their health and fertility were threatened by their doctors refusing to perform medically necessary abortions due to fear of prosecution, as well as two Tennessee OB-GYNs who say the ban impedes their ability to provide treatment.

The Center for Reproductive Rights (CRR) has requested a temporary injunction barring the state of Tennessee from enforcing its near-total abortion ban. The ban’s only exceptions include if the mother’s life or health is threatened by the pregnancy or if the fetus is not expected to survive. 

The Tennessee attorney general’s office asked that the case be dismissed because the argument presented by the plaintiffs lacks merit and the Tennessee Constitution does not guarantee any right to an abortion. 

The panel — Judge Sandra Donaghy, Chancellor Patricia Head Moskal and Chancellor Kasey Culbreath  — will issue a ruling after they’ve deliberated over the arguments presented. The two sides spoke for more than eight hours Thursday. 

Here are a few key takeaways: 

Legal vagueness 

The issue of legal vagueness was the key argument between the two parties Thursday. 

The medical exemption that permits doctors to perform abortions to save the health and life of a pregnant person was passed eight months after the state’s trigger law banning abortions went into effect in 2022. 

The CRR argues that the Medical Necessity Exception is too vague. The law allows physicians to perform abortions for molar or ectopic pregnancies, to remove a miscarriage, to save the life of the mother or if there is a serious risk of permanent and irreversible damage to bodily functions. 

“Doctors are denying or delaying abortion care in cases where even defendants concede that it would be legally permissible. They are doing this because the terms of the Medical Necessity Exception are vague, and do not give them enough guidance to determine when they can provide life or health-preserving care under the criminal abortion ban,” Linda Goldstein, CRR senior counsel, told the panel. 

Whitney Hermandorfer, representing the Tennessee attorney general’s office, argued that the exemption provided physicians with flexibility to act in numerous potential scenarios.  

Culbreath noted, however, that the exact language within the exemption had been struck down in other states, such as Montana. Hermandorfer pointed to the Idaho Supreme Court and the Texas Supreme Court, which both found similar language to be appropriate. 

Goldstein rebutted Hermandorfer’s claims that the law provided flexibility, saying regardless of how it is written, Tennessee physicians are interpreting it in a way that has stopped them from providing medically necessary abortions. 

Physicians fear prosecution 

While plaintiffs argue the fear of prosecution among Tennessee physicians has halted life-saving abortions, Hermandorfer tried to down play those fears in front of the panel. 

“[Tennessee Attorney General Jonathan Skrmetti] said he would exercise his authority if he thought a given prosecution was warranted. And as these pleadings show, there are so many situations where a … medical necessary abortion will be permitted,” Hermandorfer said. 

Moskal noted that even if a district attorney declines to enforce the law or pursue prosecution, a backup provision involving the attorney general and the Tennessee Supreme Court could still result in prosecution. 

Hermandorfer stated that this provision was not a simple case of the attorney general choosing a prosecutor to go after a particular case, but a multistep system in which several decisions must first be made. 

Heather Maune, a board-certified OB-GYN in Tennessee and one of the plaintiffs in the suit, told The Hill that regardless of what Hermandorfer said during the hearing, the threat of imprisonment and potentially losing their medical license is still too great. 

“Many people in the medical community, if they are convicted of a felony, would lose the right to vote in Tennessee, first and foremost, and then you would probably lose your medical license immediately,” Maune said. “And that is our livelihood. That is our passion. It is what we love, and to say that we shouldn’t be worried about that is just not fair.” 

Constitutionality 

Among the requests for relief made by the CRR are that the Tennessee abortion ban be declared in violation of the state’s constitution, specifically a person’s protected right to life. 

Goldstein acknowledged a 2014 amendment to the state’s constitution that explicitly states it does not protect the right to an abortion, but said this “does not do anything to diminish the right to life” that was conferred to Tennesseans more than 200 years ago. 

In her remarks regarding constitutional claims, Hermandorfer again leaned on the state’s Medical Necessity Exception, arguing that its existence permitting doctors to perform abortions means Tennessee’s abortion law does not violate the constitution. 

In her response, Goldstein pointed to the facts presented to the court. 

“Defendants contend that the Medical Necessity Exception does not infringe pregnant patients’ right to life because it permits abortion care necessary to prevent serious health scenarios,” Goldstein said. “That argument requires that the court ignore the factual allegations that we’ve made that pregnant patients … across the state like the plaintiffs here are not getting the constitutionally required abortion care that they should getting.” 

A spokesperson for the Tennessee attorney general’s office said in a statement to The Hill following the hearing, “The Constitution makes clear that decisions about abortion law are made by the elected representatives of the people of Tennessee.”

“This lawsuit is a policy disagreement that belongs in the legislature, not a courtroom,” the statement continued. “The Attorney General’s Office will continue to defend the Human Life Protection Act and our system of representative democracy.” 

A timing on a ruling regarding the case has not been given. Moskal said the panel would issue one “as soon as” they are able to.