The state is putting doctors in a really uncomfortable position.
Tennessee has long been very committed to ensuring its citizens don't have access to safe and legal abortions. Now, the state got a major assist from the U.S. Sixth Circuit Court of Appeals, which just ruled 2-1 that one of Tennesee's abortion restrictions — a ban that forces doctors to interrogate patients — can be enforced.
The Tennessee law is very similar to a measure recently passed in Mississippi. In both instances, doctors are expected to determine why a person is seeking an abortion. But there's no way to determine why someone wants an abortion without interrogating them about their choices.
Tennessee's ban will prohibit abortions if the provider knows a procedure is being sought "because of" the fetus's race or sex, or if a prenatal screening indicates Down syndrome or the potential for it. If doctors violate the law, they can face up to 15 years in jail and a fine of up to $10,000. The American Congress of Obstetricians and Gynecologists has cautioned against just these sorts of bans, saying they interfere with the patient-physician relationship and can create a situation where patients may withhold info or lie so they don't run afoul of the prohibition.
The law doesn't just create a situation where patients may withhold information. It also creates a situation where abortion providers may feel they need to withhold care.
The plaintiffs in the case, Tennessee abortion providers, argued that such a law should not be enforced "because it requires a physician to discern her patient's motivations."
For example, the plaintiff's brief noted, the law isn't clear as to whether a physician could perform an abortion if one of the prohibited categories was the patient's "sole reason, a primary reason, or one motivating factor among many." Because of that, abortion providers could "reasonably fear prosecution" if a patient even made a passing reference to the sex of the fetus or the race of her partner and they performed the abortion anyway.
Tennessee was recently blocked from imposing a mandatory waiting period, but has appealed that ruling. Even with the waiting period being blocked, the state has a host of other restrictions that are already in effect, and a host of other restrictions remain.
First, the state already has mandated counseling, where physicians are forced to tell patients about the agencies available to assist her if she chooses not to have an abortion and that there are risks to abortion, among other things. The state doesn't allow the use of telemedicine for medication abortions and tried to impose a law that would have required abortion providers to tell patients receiving medication abortions that the procedure could be "reversed" — a dangerous falsehood. Minors must obtain parental consent for the procedure.
The state currently outlaws nearly all abortions after 20 weeks and passed a six-week ban last year, though the latter has been blocked by the courts. And finally, if Roe v. Wade is reversed, the state has a trigger ban, which would automatically ban nearly all abortions.
With all of these restrictions, and with Tennesee continuing to litigate over additional ones, abortion access is quite tenuous. Worse, with a 6-3 anti-abortion supermajority at the United States Supreme Court, the state has every incentive to keep passing bans in the hopes that one will stick.
Published with permission of The American Independent Foundation.