‘Chilling effect’: Doctors face new legal quandaries under Tennessee’s abortion ban

Knoxville obstetrics and gynecology doctor Nikki Zite has treated two ectopic pregnancies since Roe v. Wade was overturned June 24. Now that the Tennessee abortion ban is in effect, the pregnancy complication, which presents life-threatening risks to mothers, prompts new worries for her.

“I hope that I am brave enough to move past that worry to take care of patients the way I’m trained to,” said Zite, adding that she does not speak for her employer.

Obstetricians and other health care professionals across the state face a new and confusing legal landscape concerning pregnancy termination, forcing them to navigate varying laws as they make critical decisions in emergency situations. At stake is their patients’ health, but also the potential for a felony offense.

“I feel like the law is dangerous if taken literally,” Zite said. “Many physicians fear criminalization and may be taking it literally. That makes me nervous for patients that have care delayed.”

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

The defense does not prevent a felony charge and, if convicted, a medical professional could face as many as 15 years in prison, a $10,000 fine, loss of employment, significant legal fees, loss of their medical license and loss of voting rights, said Knoxville criminal defense lawyer Chloe Akers.

“If you provide lifesaving medical care and that care is a termination, you are committing a crime,” Akers said. “And, if you don’t perform that care and that patient dies, you are going to get sued for malpractice, among other things. You are in the proverbial rock and a hard place.”

The repercussions could pose new challenges in retaining doctors and other relevant medical professionals in Tennessee, as well as interrupt the pipeline for aspiring providers who can train in other states where this legal dilemma does not exist.

“I’m worried about recruiting at the medical student level, the residency level, the fellow level,” Zite said. “Ob-gyn is a leader in burn out. This is not helping.”

The impact could be more significant in rural areas that already struggle with access to obstetric care. Tennessee ranked 41 in maternal health in 2019, according to America’s Health Rankings.

“You take smaller markets in Tennessee, you lose an OB, that is a lot of patients,” Tennessee Medical Association CEO Russ Miller said. “That’s a lot of other health care services you lose as well, not just delivering babies.”

The list of ‘what-ifs’ for Tennessee obstetricians is endless and many doctors 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 all the situations that could arise. So that’s what we are dealing with,” Miller said. “The chilling effect on the medical community, you can feel it.”

Also at issue is the federal Emergency Medical Treatment and Labor Act (EMTALA), that the U.S. Department of Health and Human Services said in July instructs hospitals receiving Medicare to provide abortions if necessary for emergency care. In Idaho, a federal judge in August paused a portion of the state’s abortion because it conflicted with EMTALA. In Texas, a federal judge blocked the federal guidance on EMTALA concerning abortion, siding with the state.

The Tennessee abortion law does not spell out what quantifies as a serious risk to a mother, leaving questions unanswered on how close to death or impairment she must be, said Jennifer Eberle, a medical malpractice attorney with Kinnard Law in Nashville. If a doctor waits too long to terminate a pregnancy and a mother’s health is harmed, medical malpractice is real concern.

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

Multiple hospitals declined to go into specifics on how they were advising their medical staff about the issue. Describing the legal landscape as a “uniquely complex situation,” HCA Healthcare said it would support physicians as they “exercise their independent medical judgment” to determine treatment within state and federal laws. Vanderbilt University Medical Center officials said it had changed its policies to mitigate health care and equity concerns prompted by the new law but declined to comment further on how it was advising staff.

“Our goal is to support our clinicians to provide comprehensive reproductive health care to women in need, including facilitating appropriate care for our patients who are pregnant, consistent with federal and state law,” the hospital said in an emailed statement.

Gov. Bill Lee has said that he sees doctors as protected when they are treating a dangerous maternal health  issue, and proponents of the law have argued that prosecutors are unlikely to pursue such charges against doctors.

“We are very confident that the real-world application of the law, any doctor in his good faith medical judgement who had to terminate the life of the child to save the mother’s life is not going to get criminally charged,” Will Brewer, legal counsel for Tennessee Right to Life, said. “That’s what the affirmative defense is all about.”

Brewer said doctors being investigated would be able to show evidence that they terminated the pregnancy to protect a mother’s health, which would prevent them from being charged. “The investigation would end right there,” he said.

Asked about enforcement of the abortion ban as it relates to protecting the health of a mother, the office of new Tennessee Attorney General Jonathan Skrmetti said prosecutions are initiated by local district  attorneys. He also offered this statement: “The Human Life Protection Act prohibits elective abortions, not critical health care.”

His predecessor, Herbert Slattery, recently joined other states’ attorneys general in defending Idaho’s abortion ban against the lawsuit brought by the U.S. Justice Department, concerning EMTALA and the state’s abortion ban.

But assurances that prosecutions are unlikely is inadequate for doctors providing critical care, Akers said. If the Tennessee legislature did not intend for doctors to be prosecuted 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 last 50 years has now become real, and the application of this law in our state, particularly 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 be made to the law to add exclusions to the ban, including for ectopic pregnancies, and to add clarity to what it means to protect maternal health.

Brewer said he is open to bringing greater clarity to the law to ease doctors’ concerns, such as addressing ectopic pregnancies and miscarriage removal, during the next legislative session. But, he does not want to see the “affirmative defense”  portion changed.

“We are very confident that the way the law is written those things are not included as violations of the statute, but if doctors would be more comfortable with those types of things being spelled out, we are happy to clarify the law in 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 paper that one of our doctors gets trapped up in this,” Miller said. “These are highly trained, skilled professionals doing what they went to school for many, many years to do to help patients. In the course of that, to be brought up on criminal charges, that is very worrisome.”