The claim has been met with skepticism from health care experts, lawyers, Democrats and reproductive rights advocates, who counter that the law creates a dangerous new legal environment for those who become pregnant and for medical providers.
With some lone Republican lawmakers backing the exception, a key legislative leader this week acknowledged that the skeptics have a point — he thinks the law should be changed.
“You’ve got all kinds of people saying: I didn’t see that, can you point it out?” House Speaker Cameron Sexton said in an interview with The Associated Press about the statute’s unclear language about the exemption. “If that was the intention, then let’s clarify. Let’s spare the mother’s life.”
Sexton’s comments contrasted with positions taken by Republican Senate President Randy McNally and Gov. Bill Lee. While all three lawmakers are largely opposed to abortion, Sexton is the only top Republican leader to acknowledge that the ban could be clarified and improved.
Those divisions have emerged as state lawmakers return to the Tennessee Capitol this week to begin the 2023 legislative session. They could represent the next front in the legal battle over when and how Republican-majority states make exceptions to abortion bans.
With a supermajority in control, Tennessee Republicans are expected to advance a wide range of issues — from tax breaks to tougher penalties for certain crimes to policies targeting the treatment of transgender children — without much resistance. They also must grapple with a crisis within the Tennessee Department of Children’s Services, which has been flagged for failing to properly protect the state’s most vulnerable children. Meanwhile, Sexton said he would introduce legislation that would allow teachers to take up to six weeks of paid maternity and paternity leave.
On abortion, however, the GOP is divided with little certainty of what will pass, if at all.
Tennessee’s abortion ban is considered one of the strictest in the nation. It makes abortion a Class C felony, punishable by up to 15 years in prison. There are currently no exceptions.
Instead, the law includes an “aggressive defense” of doctors. Instead of the state proving that the procedure is not medically necessary, the law shifts the burden on doctors to prove it is necessary in court.
Tennessee lawmakers passed the law in 2019, when the idea of the U.S. Supreme Court overturning Roe v. Wade was the hope of most Republicans, not an imminent reality. In the months since Tennessee’s law went into effect, at least one Republican state lawmaker has admitted that he voted for the trigger law almost without reading it because he never thought the high court would strike down the constitutional right to abortion .
Still, in an interview with The Associated Press, McNally said he supports the current law and doesn’t think it should be changed, saying “we should see how it works.”
McNally said he believes the law provides protections for people who become pregnant, but “it’s not absolute because decisions about a mother’s life are not absolute.”
“It could be something with a low probability of harm to her, or it could be a critical decision like an ectopic pregnancy,” he said. He said he usually has confidence in prosecutors because they can decide whether to pursue charges according to the law.
Although he said he might vote against a bill that would change abortion laws, McNally said abortion would not be used as a “litmus test” for Republican senators. He said he would not actively work to prevent a bill from being brought to a vote.
“I don’t usually get involved and generally trust the committee system, and on that issue I certainly would,” McNally said.
Lee, meanwhile, played down concerns that the abortion ban’s current language about exemptions is causing confusion and fear in the medical community. An outspoken opponent of abortion rights, Lee insists doctors can use “their best judgment” to save a pregnant woman’s life.
Sexton said his support for the abortion exception is in line with what a majority of Tennesseans want, noting that various polls show support for the exemption.
According to a recent Vanderbilt University poll, a majority of registered voters in Tennessee say they want exceptions to the state’s sweeping abortion ban for rape or incest — and many are unaware of the specifics in today’s law content.
According to the Vanderbilt pollster, fewer than one in five people were able to choose which of the statements Vanderbilt offered came closest to what current abortion law requires.
However, Sexton said he wasn’t sure there were enough House Republicans to support adding immunity for rape and incest. Several bills from this session would tweak the ban, he said.
“We need to listen to all the women, especially in our caucus, and let’s see what they say,” Sexton said. “You’re going to have people who believe in (the) trigger (law), you’re going to have people who believe we need exceptions … but it needs to be a conversation that we listen to, not try to talk to them about what we think is needed.”
Tennessee’s abortion ban has faced no legal challenges since it went into effect last August. Since the Supreme Court ruling on abortion, however, strict restrictions imposed by states have continued to crop up across the country.
Most recently, the South Carolina Supreme Court struck down a ban on abortions after about six weeks of pregnancy, ruling that the restrictions enacted by the Deep South violated the state’s constitutional right to privacy.