1st Arguments in Tennessee Abortion Case Include Plenty of Anti-Abortion Bullshit

At one point, an attorney for the women whose lives were endangered by the abortion ban said he didn't know how the anti-abortion Tennessee attorney general's office could make its arguments "with a straight face."

1st Arguments in Tennessee Abortion Case Include Plenty of Anti-Abortion Bullshit

A Tennessee court on Thursday heard the first arguments in a case concerning the state’s abortion ban from both the state and lawyers for the women whose lives and health were endangered by the law. The women, represented by the Center for Reproductive Rights, sued the state in 2023 to clarify what the ban’s narrow and confusing medical exceptions actually include.

Joined by physicians who say they’ve been constrained and threatened by the abortion ban, the lawsuit argues that the exceptionwhich only states that it be used for medical emergencies that pose “serious and substantial risk”—is too vague to actually help anyone. Doctors say they’re turning away women facing severe pregnancy complications, fearing prosecution and imprisonment. Meanwhile, lawyers for Tennessee argue the law is clear, along with the typical bullshit about protecting “unborn life” over pregnant women.

In court on Thursday, CRR attorneys including Linda Goldstein and Marc Hearron argued against the state’s motion to dismiss the suit and also called for an injunction to stop the abortion ban from being enforced until there’s clarity in its medical exception. After the state argued that the ban doesn’t harm patients because it’s meant to criminalize abortion providers, Hearron said he didn’t “really know how [the state] can make that argument with a straight face.”

“A few doctors saying as a matter of fact that they are unclear about what serious risk might entail in an edge case does not show vagueness as a matter of law,” Whitney Hermandorfer, a lawyer with the Tennessee attorney general’s office, said in court on Thursday. She also claimed that the women don’t have standing to sue because they aren’t currently undergoing medical emergencies that relate to the ban. “So while we can all agree the past health circumstances are incredibly unfortunate, I submit here that they do not provide a legal reason to invalidate the medical exception at issue in this case,” Hermandorfer said.

“Unfortunate” is, frankly, some nasty word choice to describe what the women say Tennessee’s abortion ban put them through. Plaintiffs include Nicole Blackmon, who says she suffered “physical and emotional torture” from being forced to carry a nonviable pregnancy for months because no physician in Tennessee believed they could legally offer her an emergency abortion. Blackmon, who eventually had a stillbirth as her health deteriorated over several months, has since had her tubes tied out of fear of ever being pregnant again in Tennessee. Following Tennessee attorneys’ logic, because she won’t get pregnant again, she doesn’t have grounds to sue the state for what it did to her.

Other plaintiffs include Rebecca Milner, who was 20 weeks pregnant when she learned she suffered from preterm premature rupture of membranes (PPROM) and her fetus was unlikely to survive. She had to travel to Virginia for an emergency abortion but then became infected with sepsis, a potentially life-threatening condition, and needed to be hospitalized for several days upon returning to Tennessee. Milner still wants to have children, but fears being pregnant in Tennessee—a common sentiment that CRR hears from women in Tennessee who have called them, attorney Linda Goldstein told Jezebel earlier this year.

“The abortion ban directly regulates what care they can and cannot provide their patients and it affects them by threatening them with imprisonment, fines and loss of their medical license if they violate the law,” Hearron said.

Goldstein argued that the ambiguity of the ban’s medical exception, which doesn’t specify how near to death a patient has to be, has “left physicians clueless as to what they should do.” She added, “If we are going to send someone to prison for 15 years, they have to know that they are doing something that the statute prohibits.” Providers who violate the state’s abortion ban face the threat of imprisonment, loss of medical license, and steep fines.

Chancellor Patricia Head Moskal, a member of the court’s three-judge panel, at one point conceded that it was a “challenge to read clarity into the statute,” acknowledging that it has “imprecise terms” and questioned what constitutes a “substantial” risk of injury.

The Tennessee attorney general’s office’s only “defense” was that the plaintiffs—several of whom have made clear they want to have children and families, but fear Tennessee’s abortion ban—don’t respect life. “The entire presentation of the other side, I have not heard one acknowledgment of the fact that when they mention abortion care, what that involves is the termination of another life,” Hermandorfer said.

But in fact, several of the plaintiffs in the suit are already mothers or are currently pregnant. Two of the plaintiffs—Kathryn Archer and Monica Kelly—are due to give birth in May and June respectively. Archer was 20 weeks pregnant with her second child when she learned her fetus suffered from severe fetal anomalies that were incompatible with human life. She was forced to travel to D.C. for an emergency abortion after being unable to get care in Tennessee, her home state. Kelly was in her 12th week of pregnancy with what also would have been her second child when she learned her fetus suffered from Trisomy 13, a severe fetal condition, and was unlikely to survive. Kelly’s doctors warned that continuing the nonviable pregnancy put her at risk of life-threatening infections, but she was still unable to get emergency abortion care in Tennessee and had to travel to Florida for the procedure.

The court didn’t land anywhere on Thursday. But as we await a ruling, varying versions of these plaintiffs’ gutting stories will continue to happen, so long as health care providers across the state have to fear criminal charges for doing their jobs.

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