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Court hears arguments to throw out Tennessee abortion lawsuit, block ban in part

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(NASHVILLE, Tenn.) — A three-judge panel heard arguments Thursday on throwing out a lawsuit challenging Tennessee’s abortion ban as well as a motion to block part of the ban.

The case stems from a lawsuit filed by seven women and two doctors against the state over its abortion bans. The judges are reviewing a motion to dismiss the lawsuit and a motion for a temporary injunction against the ban as it applies to dangerous pregnancy complications.

Tennessee ceased nearly all abortion services when a trigger ban went into effect in August 2022, after the U.S. Supreme Court overturned Roe v. Wade. The state is one of 14 to cease nearly all abortions.

Performing or attempting to perform an abortion is a Class C felony in the state.

The panel, consisting of three women, said it will not issue a ruling Thursday. A ruling in writing is expected after they have reviewed the case.

In the lawsuit, the women allege they were denied “necessary and potentially life-saving medical care” because physicians “fear the penalties imposed by that ban,” according to the lawsuit. The Tennessee attorney general and state board of medical examiners are also named in the suit.

The state argued that the wording of the ban was clear, pushing back against claims that physicians are unsure what constitutes legal abortion care.

“A few doctors saying as a matter of fact that they are unclear about what serious risk might entail in an edge case does not show vagueness as a matter of law,” Whitney Hermandorfer, a lawyer with the Tennessee attorney general’s office, said Thursday in court in response to a question from judges about affidavits physicians have submitted in the case.

The state argued that the individuals who filed the lawsuit are not currently undergoing the medical emergencies mentioned in the suit or seeking emergency care — and thus lack the grounds to file the suit as they are asking for relief in hypothetical future scenarios.

“So while we can all agree the past health circumstances are incredibly unfortunate, I submit here that they do not provide a legal reason to invalidate the medical exception at issue in this case,” Hermandorfer said in court.

A narrow law passed last year in Tennessee allows abortions in cases of molar pregnancies, ectopic pregnancies, to remove a miscarriage or to save the life of the mother. The law was passed in response to pushback from physicians and advocates.

The trigger law did not have an exception but allowed an affirmative defense that allows physicians being prosecuted over providing an abortion to justify their actions, claiming it was done to prevent death or serious injury. This clause, which lawmakers point to as an exception, only comes into effect during a criminal trial after a physician is charged with the felony and their license has been suspended.

In response to assurances given by prosecutors that they would not prosecute certain cases, Chancellor Patricia Head Moskal, a judge in the case, pushed back that there is no guarantee that the district attorney would not prosecute just based on their statements, noting that district attorneys are elected and change regularly.

The state also pushed back on the claim that the law violated the right to life clause of the state constitution, pointing to the exception to the ban.

Plaintiffs’ attorneys argue against dismissing suit

Pushing back on the state’s claim that the patients are not affected persons because the law does not criminalize abortions for women seeking care, Center for Reproductive Rights attorney Marc Hearron said plaintiffs are directly impacted by their care being denied.

“I don’t really know how they can make that argument with a straight face,” Hearron said.

“The physician plaintiffs are directly affected by the threatened enforcement of Tennessee’s abortion ban. The abortion ban directly regulates what care they can and cannot provide their patients and it affects them by threatening them with imprisonment, fines and loss of their medical license if they violate the law,” Hearron said.

Hearron argued that as long as one of the plaintiffs has standing in a case, then the court’s jurisdiction should not be in question.

Pushing back against the state’s claim that there has not been any governmental action in the form of charges being brought against a physician for violating the ban, Hearron argued that physicians are facing a threat of enforcement and that the enactment of the law was itself a governmental action.

Lawyers for the plaintiffs also argued that physicians losing their medical licenses would constitute harm to their property, giving them standing to pursue the lawsuit.

The lawyers also alleged that patients in the state are not getting constitutionally required abortion care that they should get.

Center for Reproductive Rights attorneys also argued that the language of the exception law is just as vague as the original statute. They also argued that the language has multiple indeterminate meanings.

“Serious and substantial risk” to the life and health of a patient could mean different things to different people and are not, Linda Goldstein, the senior counsel at the Center for Reproductive Rights, said in court.

Attorneys argued there were four sources of linguistic vagueness in the law: the use of nonmedical language, ambiguous terminology, no indication of timing and the reasonable medical judgement standard.

“In combination, they have left physicians clueless as to what they should do,” Goldstein said in court.

“If we are going to send someone to prison for 15 years, they have to know that they are doing something that the statute prohibits,” Goldstein said.

Goldstein cited Kate Cox’s case, pointing to the dilemmas doctors are facing. Cox is a Texas woman who filed a lawsuit requesting an emergency abortion for a pregnancy with a severe anomaly.

After a trial court allowed her to get an abortion, the Texas Supreme Court blocked and then overturned that ruling, denying her an abortion. She eventually traveled out of state to access care.

The lawsuit

The lawsuit, filed by the Center for Reproductive Rights, is requesting a clarification of the medical exception in the abortion ban, through a declaration of when physicians can legally provide abortion care.

The Center for Reproductive Rights is asking the court to allow physicians to rely on their “good faith judgement” and consultation with patients in making their decisions in cases of medical conditions or pregnancy complications that pose a risk to the mother’s life; medical conditions that are exacerbated by pregnancy; conditions that cannot be effectively treated during pregnancy, or require recurrent invasive intervention; and in cases of fatal fetal anomalies.

The suit argues that the exception to the abortion ban as it applies to emergency medical conditions violates the Tennessee constitution’s due process and equal protections clauses. It also argues that the law is unconstitutionally vague for physicians who are unaware what care would meet the exceptions.

Despite claims from politicians, including Gov. Bill Lee, that the ban allows exceptions for pregnancies that threaten a woman’s life or could cause serious bodily injury, some doctors told ABC News they believe this is not the case.

The plaintiff’s stories

Nicole Blackmon, a 31-year-old living in Tennessee, said she stopped taking medication for hypertension and a rare brain condition when she learned she was pregnant in July 2022 to avoid harming her pregnancy.

Fifteen weeks into her pregnancy, Blackmon said she learned her baby had a fatal diagnosis. Because she said she could not afford the thousands of dollars it would cost to travel to another state for abortion care, she was forced to continue her pregnancy despite risks to her health. She gave birth to a stillborn baby, according to the suit.

Allie Phillips, 28, and her husband were excited about the birth of their second daughter when they received a fatal diagnosis, she told ABC News in October. At 18 weeks pregnant, the couple said they were told the fetus had multiple anomalies that were incompatible with life. She told ABC News that many of the fetus’ organs, including the heart and brain, had not properly developed and her doctor said the fetus’ condition would continue to deteriorate and that continuing her pregnancy could pose serious risks to Phillips’ health.

Due to Tennessee’s ban, Phillips said her doctor told her that she could not offer her any advice on how to access abortion care. After doing their own research, the couple made an appointment at an abortion clinic in New York for the following week. When she arrived, she said she learned her baby’s heart had stopped beating and she was taken in for emergency care because she was at risk of severe blood clots and infection, including sepsis.

Kaitlyn Dulong, who became pregnant in November 2022, was diagnosed with cervical insufficiency and told she would eventually lose her pregnancy, but she was not given abortion care until 10 days later when her cervix was dilated, she had lost all her amniotic fluid and the fetus’ body was in the vaginal canal, according to the lawsuit.

Monica Kelly was 12 weeks pregnant when her fetus was diagnosed with Trisomy 13, a severe fetal condition, and was unlikely to survive birth or would die shortly after birth, according to the lawsuit. She was also told her continued pregnancy would put her at risk of preeclampsia and infection. She traveled to Florida for abortion care, the lawsuit says.

Kathryn Archer’s fetus was diagnosed with severe fetal anomalies at 20 weeks of pregnancy, including irregular brain development and improperly developed organs and was unlikely to survive birth, according to the lawsuit. With assistance from an abortion fund, she traveled to Washington, D.C., for care.

Rebecca Milner was 20 weeks pregnant when she suffered pre-term premature rupture of membranes, making her pregnancy unlikely to survive and putting her at risk of a potentially life-threatening infection, according to the suit. She traveled to Virginia to get abortion care, but still developed an infection that doctors said was due to the delay in care, according to the lawsuit. She needed treatment for sepsis when she returned to Tennessee, the suit says.

Rachel Fulton was pregnant when an ultrasound showed inadequate fetal development of the nervous system, lower spine, lungs, abdomen, feet and hands, as well as fluid buildup in tissues and organs, the lawsuit states. She was also at risk of mirror syndrome, a life-threatening complication, so she drove to Illinois with her husband to access abortion care, according to the lawsuit.

Physicians Heather Maune and Laura Anderson are also plaintiffs in the lawsuit, suing on behalf of themselves and their patients. They are asking for clarity to provide care to their patients.

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