Tennessee

A ban has been enacted on in-state abortion care. The import of these bans for the practice of reproductive medicine and, specifically, the use of Assisted Reproductive Technology (ART) to build families, varies on a state-by-state level. While the majority of states’ abortion ban statutes are applicable in the context of a pregnancy, many state laws also include definitions stating that “personhood” begins at fertilization or even conception. Such definitions -- whether intentionally or not -- have the potential to implicate and even ban the use of ART, including in vitro fertilization (IVF), though some states have taken steps to carve this out as allowable. In a growing number of states, statutory restrictions severely limit access to abortion care and implicitly threaten the unhindered practice of reproductive medicine.

In Tennessee, at-times contentious debates have ensued this legislative session regarding a proposal to legalize abortions in medical emergencies and other limited circumstances. Specifically, the measure would allow abortions to “remove a medically futile pregnancy; remove an ectopic or molar pregnancy, dispose of an un-implanted fertilized egg, address a lethal fetal anomaly; or prevent or treat a medical emergency (TN HB 833)..

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.

• 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. 

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The law does not appear to relate to ART procedures. The penalty under this law would be a Class C felony.

• "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. 

“For purposes of this section, a person is deemed to be conceived at the moment of fertilization, as that term is defined in 39-15-23.”
- § 29-34-212.

The trigger law is effective upon:

• 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.

• 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:
  1. The abortion was performed by a licensed physician;
  2. 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 
  3. The physician performs an abortion in the manner which provides the best opportunity for the unborn child to survive.