Doctors Face New Legal Dilemmas Under Tennessee Abortion Ban – Tennessee Lookout

Knoxville obstetrics and gynecology doctor Nikki Zite has treated two ectopic pregnancies since Roe v. Wade on June 24. .

“I hope I’m brave enough to overcome this worry and take care of patients the way I’m trained,” Zite said, adding that she’s not speaking on behalf of 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 when making critical decisions in emergency situations. The health of their patients is at stake, but also the possibility of a criminal offence.

“I feel like the law is dangerous if taken literally,” Zite said. “Many doctors fear criminalization and perhaps take it literally. It makes me nervous for patients whose care is delayed.

It is an “affirmative defence” for physicians who terminate a pregnancy to save a mother’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function” contained in the Tennessee abortion ban.

Each pregnancy is unique. Each person is different. You can’t even begin to list all the situations that could arise. So that’s what it’s all about. The paralyzing effect on the medical community, you can feel it.

– Russ Miller, CEO, 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, legal costs important, the loss of his medical license and the loss of the right to vote, said Knoxville criminal defense attorney Chloe Akers.

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

The repercussions could pose new challenges to retaining physicians and other relevant healthcare professionals in Tennessee, as well as interrupting the pipeline of aspiring providers who can train in other states where this legal dilemma does not exist.

“I worry about recruitment at the medical student level, at the residency level, at the fellowship level,” Zite said. “Ob-gyn is a leader in burnout. It doesn’t help.

The impact could be greater in rural areas that already struggle to access obstetric care. Tennessee ranked 41st in maternal health in 2019, according to the US Health Rankings.

An anti-abortion protester, left, opposes abortion rights during a July protest at the Tennessee Capitol. (Photo: John Partipilo)

“You take smaller markets in Tennessee, you lose an OB, that’s a lot of patients,” said Tennessee Medical Association CEO Russ Miller. “It’s also a lot of other health care services that you lose, not just childbirth.”

The list of “what ifs” for Tennessee obstetricians is endless, and many physicians are feeling “very stressed,” said Miller, whose organization includes 9,000 physicians.

“Every pregnancy is unique. Every person is different. You can’t even begin to list every situation that could arise. So that’s what we’re dealing with,” Miller said. medical, you can feel it.”

The Federal Emergency Medical Treatment and Labor Act (EMTALA) is also at issue. The US Department of Health and Human Services said in July it was ordering hospitals receiving Medicare to offer abortions if needed for emergency care. In Idaho, a federal judge in August suspended part of the state’s abortion service because it clashed with EMTALA. In Texas, a federal judge blocked federal guidelines on EMTALA regarding abortion, siding with the state.

Tennessee’s abortion law does not specify what constitutes a serious risk to a mother, leaving unanswered questions about near death or impairment, said Jennifer Eberle, medical malpractice attorney at Kinnard Law at Nashville. If a doctor waits too long to terminate a pregnancy and the health of the mother is compromised, medical malpractice is a real concern.

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

Several hospitals declined to go into specifics about how they advised their medical staff on the issue. Describing the legal landscape as a “particularly complex situation,” HCA Healthcare said it would support physicians as they “exercise independent medical judgment” in determining treatment within state and federal laws. Vanderbilt University Medical Center officials said it has changed its policies to alleviate health care and equity concerns raised by the new law, but declined to comment further on how it advises staff.

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

“Our goal is to help our clinicians provide comprehensive reproductive health care to women in need, including facilitating appropriate care for our pregnant patients, in accordance with federal and state law,” the hospital said in a statement. press release sent by e-mail.

Governor Bill Lee has said he views doctors as protected when dealing with a dangerous maternal health issue, and supporters of the law have argued that prosecutors are unlikely to pursue such charges against doctors. .

“We are confident that real law enforcement, any bona fide doctor who had to end the child’s life to save the mother’s life will not be criminally charged,” said Will Brewer, Jural advisor. the attorney for Tennessee Right to Life, said. “That’s what the affirmative defense is for.”

Brewer said doctors under investigation would be able to prove they terminated the pregnancy to protect the mother’s health, which would prevent them from being charged. “The investigation would stop there,” he said.

Asked about the enforcement of the abortion ban as it relates to protecting a mother’s health, the office of new Tennessee Attorney General Jonathan Skrmetti said the charges are being filed by state prosecutors. local districts. He also made this statement: “The Human Life Protection Act prohibits elective abortions, not essential health care.”

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

Jonathan Skrmetti, chief legal adviser to Governor Bill Lee.  (Photo:
Jonathan Skrmetti, Attorney General of Tennessee (Photo:

But assurances that lawsuits are unlikely are insufficient for doctors providing critical care, Akers said. If the Tennessee legislature had no intention of prosecuting doctors for terminating a pregnancy to save a mother’s life, then they should change the language of the law to reflect that, Akers said.

“What was theoretical for the past 50 years has now become real, and the enforcement of this law in our state, especially in rural communities, is devastating,” Akers said. “They need to make changes to this law.”

Medical groups and doctors are also calling for revisions to the law to add exclusions to the ban, including for ectopic pregnancies, and to clarify what protecting maternal health means.

Brewer said he was open to bringing greater clarity to the law to address physician concerns, such as tackling ectopic pregnancies and eliminating miscarriages, in the next legislative session. But, he does not want to see the “affirmative defense” part modified.

“We are very confident that the way the law is written, these things are not included as violations of the law, but if doctors would be more comfortable with this type of thing, we are happy to clarify the law. that way,” Brewer said.

In the meantime, 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 in this,” Miller said. “They are highly skilled and qualified professionals doing what they have gone to school for, many, many years to help patients. During this, being charged with criminal offenses is very worrying.

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