Doctors face new legal quandaries under Tennessee abortion ban – Tennessee Lookout

Knoxville-based obstetrician-gynecologist Nikki Zett has treated two ectopic pregnancies since Roe v. Wade was dismissed on June 24. Now that the Tennessee abortion ban is in effect, pregnancy complications, which pose life-threatening risks to mothers, are raising new concerns for her.

“I hope I will be brave enough to move past this anxiety to take care of patients the way I have been trained,” Zeti said, adding that she does not speak for her employer.

Obstetricians and other healthcare professionals across the state face a new and confusing legal landscape regarding pregnancy termination, forcing them to navigate different laws while making critical emergency decisions. At stake is the health of their patients, but also the possibility of committing a felony.

“I feel the law is dangerous if it is taken literally,” Zetty said. Many doctors fear criminalization and may take it seriously. It makes me nervous about patients who are late in getting care.”

There is talk of a “positive defense” for physicians who terminate a pregnancy to save the mother’s life or to prevent the “grave risk of fundamental, irreversible defect of major bodily function” contained in the Tennessee abortion ban.

Every pregnancy is unique. Everyone is different. You can’t even begin to list all the situations that could arise. This is what we are dealing with. The shocking impact on the medical community, you can feel it.

– Ross Miller, CEO of the Tennessee Medical Association

The defense does not prevent a felony charge, and if convicted, a medical professional could face up to 15 years in prison, a $10,000 fine, job loss, significant legal fees, loss of his medical license and loss of voting rights, they said. Knoxville criminal defense attorney Chloe Akers.

“If you provide life-saving medical care and that care is a termination, you are committing a crime,” Akers said. “And if you don’t provide that care and this patient dies, you will be sued for malpractice, among other things. You are in the proverbial rock and in a difficult place.”

The fallout could pose new challenges in retaining doctors and other related medical professionals in Tennessee, as well as interrupting the pipeline for aspiring providers who can train in other states where this legal dilemma does not exist.

“I am concerned about employment at the medical student level, the residency level, and the fellowship level,” Zeti said. “Ob-gyn is a pioneer in burnout. It doesn’t help.”

The impact may be even more significant in rural areas that are already struggling to access obstetric care. Tennessee ranked 41st in maternal health in 2019, according to US Health Rankings.

An anti-abortion protester, left, calls for abortion rights during a July protest at the Tennessee State Capitol.  (Photo: John Bartebello)
An anti-abortion protester, left, calls for abortion rights during a July protest at the Tennessee State Capitol. (Photo: John Bartebello)

“You take the smaller markets in Tennessee, you lose the OB, and that’s a lot of patients,” said Ross Miller, CEO of the Tennessee Medical Association. “That’s a lot of other health care services you lose as well, not just having children.”

Miller, whose organization includes 9,000 doctors, said the list of “what ifs” for obstetricians in Tennessee is endless and many doctors are “extremely nervous.”

“Every pregnancy is unique. Every person is different. You can’t even begin to list all the situations that can arise. That’s what we’re dealing with,” Miller said.

And the Federal Emergency Medical Treatment and Labor Act (EMTALA), which the US Department of Health and Human Services said in July, directs hospitals receiving Medicare to offer abortions if needed for emergency care. In Idaho, a federal judge in August halted a portion of the state’s abortion because it conflicts with Imtala. In Texas, a federal judge blocked federal guidance on Imtala regarding abortion, siding with the state.

Jennifer Eberle, a medical malpractice attorney with Kennard Law in Nashville, said Tennessee’s abortion law does not specify what is considered a serious risk to the mother, leaving unanswered questions about how close she may be to death or frailty. If the doctor waits too long to terminate the pregnancy and the mother’s health is damaged, medical malpractice is a real concern.

“The doctors are in a really bad situation,” Eberle said. “It’s a really scary situation for everyone, for patients, for doctors, for hospitals.”

Many hospitals refused to go into detail about how they would advise their medical staff about this issue. HCA Healthcare described the legal landscape as a “uniquely complex situation,” and said it would support clinicians as they “exercise their independent medical judgment” to determine treatment within state and federal laws. Vanderbilt University Medical Center officials said they have changed their policies to mitigate health care and equity concerns raised by the new law, but declined to comment further on how they advise employees.

Governor Bill Lee at a press conference in July.  (Photo: John Bartebello)
Governor Bill Lee (Photo: John Bartebello)

“Our goal is to support our physicians to provide comprehensive reproductive health care to women in need, including facilitating appropriate care for our pregnant patients, consistent with federal and state law,” the hospital said in an emailed statement.

Governor Bill Lee said he sees doctors protected when they treat a serious maternal health problem, and supporters of the law have argued that prosecutors are unlikely to make such charges against the doctors.

“We are very confident that in the real world law enforcement, any physician in his bona fide medical judgment who had to end a child’s life to save the mother’s life would not be criminally charged,” Will Brewer, a Tennessee legal right to life attorney said. “That’s what positive defense is all about.”

Breuer said doctors under investigation would be able to show evidence that they terminated the pregnancy to protect the mother’s health, which would prevent them from being charged. “The investigation will end there,” he said.

Asked about enforcement of the abortion ban as it relates to protecting the mother’s health, the new Tennessee Attorney General’s office Jonathan Scrimiti said trials had been initiated by local county attorneys. He also made this statement: “The Protection of Human Life Act prohibits elective abortion, not critical health care.”

His predecessor, Herbert Slattery, recently joined other state attorneys general in defending Idaho’s abortion ban against the US Department of Justice’s lawsuit over Emtala and the state’s abortion ban.

Jonathan Scrimiti, Chief Legal Counsel to Governor Bill Lee.  (Photo: tn.gov)
Jonathan Scrimiti, Tennessee Attorney General (Photo: tn.gov)

But Akers said assurances that prosecutions are unlikely are insufficient for doctors providing critical care. Akers said that if the Tennessee legislature did not intend to prosecute doctors to terminate a pregnancy to save the mother’s life, they should change the language of the law to reflect that.

“What was theoretical for the past 50 years is now true, and the application of this law in our state, particularly in rural communities, is devastating,” Akers said. “They need to make changes to this law.”

Medical groups and doctors are also calling for a review of the law to add exceptions to the ban, including ectopic pregnancy, and to bring more clarity to what it means to protect the mother’s health.

Breuer said he’s open to increased clarity in the law to ease doctors’ concerns, such as addressing ectopic pregnancies and removing abortions, during the upcoming legislative session. But he does not want to change the “positive defense” part.

“We’re pretty sure the way the law is written, these things aren’t included as statute violations, but if clinicians are more comfortable with these kinds of things being spelled out, we’d be happy to explain the law that way,” Brewer said.

Meanwhile, doctors face an uncertain level of risk.

“I don’t want to wake up tomorrow and see the front page of the newspaper where one of our doctors is trapped,” Miller said. “These are highly trained and skilled professionals who are doing what they went to school for so many years to do to help patients. In the meantime, to be raised on criminal charges, this is very worrying.”

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