March 2023 Update
Measures to protect reproductive care
Currently, all abortions, even those to save the life of a pregnant patient, are illegal in the state pursuant to a 2019 statute. Medical professionals have decried this law, citing its chilling effect on necessary reproductive health care. While that law does, as its proponents point out, carve out an “affirmative defense” that allows a physician to defend their medical decisions in a criminal case, a physician who performs an abortion in the state is still considered to have committed a felony under state law.
Notably, this proposal is not the only of its kind introduced within the state this session, though it is the one that has, as of press time, advanced to have a hearing. This is not surprising given that “exception” measures have included what critics call poison pill clauses, including a proposal to impose stiff criminal penalties for “false” reports of sexual assault to obtain abortion. Given that both Tennessee Governor Bill Lee and Lt. Governor Randy McNally indicated they see no need to change the existing state ban, the future of this legislation is questionable.
as of July 2022
Trigger Law Statutory Cite(s)
Does this law have a potential impact on IVF/Reproductive medicine?
Why or why not?
- This bill will likely have no impact on IVF and reproductive medicine services before a pregnancy is established.
- In Tennessee, abortion is specifically related to “terminat[ing] the pregnancy of a woman known to be pregnant.” As pregnancy requires “a living unborn child within [the pregnant woman’s] body” a fertilized embryo that is not within a pregnant woman’s body would likely not be subject to the law.
- While the statute defines an “unborn child” as existing from fertilization until birth, the prohibited conduct is abortion, which is defined as the termination of the pregnancy of a woman.
Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?
Are there any penalties in this law that could apply to ART procedures?
- "Abortion" means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
- “Fertilization” means that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.
- “Pregnant” means the human female reproductive condition of having a living unborn child within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.
- “Unborn child” means an individual living member of the species homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.
Do the definitions/terms of the trigger law apply to other areas of state code?
- § 29-34-212.
What is the “trigger” for this law to take effect?
- The 30th day after the issuance of a judgement overruling, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood of Southeastern Pennsylvania v. Casey, thereby restoring state authority to prohibit abortion; or
- On the 30th day after the adoption of an amendment to the United States Constitution restoring, in whole or in part, state authority to prohibit abortion.
Key provisions: What does the law prohibit and when does it apply?
- The law prohibits a person from performing or attempting to perform a criminal abortion. Any person that provides or attempts an abortion will be charged with a Class C felony. However, the pregnant woman upon whom an abortion is performed or attempted is not subject to criminal conviction or penalty.
- An affirmative defense to prosecution, which must be shown by preponderance of the evidence, occurs if:
- The abortion was performed by a licensed physician;
- The physician determined that the abortion was necessary to prevent death of the pregnant woman or to prevent serious risk to the pregnant woman’s body; and
- The physician performs an abortion in the manner which provides the best opportunity for the unborn child to survive.