Opinion | Tennessee must change its abortion law

Before the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, I did not consider myself an abortion provider. Ninety-five percent of my work as a high-risk obstetrician was helping women through complex pregnancies to achieve healthy outcomes for both them and their babies.

But I also served the 5 percent of women who did not think they could get pregnant on dialysis, who develop life-threatening hypertension and need delivery before their babies can survive preterm or who learn halfway through pregnancy that their baby has life-limiting birth defects. Before Dobbs, I did not use the word “abortion” when I talked to these patients about ending pregnancies; I opted instead to talk about terminating or interrupting pregnancies. But I wish I had. I should have conveyed that abortion is health care, can be lifesaving and happens more frequently than many of us acknowledge.

Now that abortion is banned in Tennessee, my fellow physicians and I face a new dilemma of how to operate under extremely restrictive abortion laws while maintaining our ethical responsibilities to provide needed health care. Part of this work requires advocating incremental changes that would have real, tangible effects on patients’ lives and accepting progress, however imperfect.

Other health care professionals in Tennessee and I are trying to reform one of the most restrictive bans in the country: the Human Life Protection Act, which became law in Tennessee after the Dobbs decision. It considers any action in which a live pregnancy is ended, other than in an effort to increase the probability of live birth, a felony punishable by up to 15 years in prison. Removing a six-week ectopic pregnancy in the fallopian tube or treating inevitable miscarriage is, by definition, a criminal offense.

There are no exceptions to the law. There is only an affirmative defense: If charged or prosecuted, physicians can present evidence that they performed an abortion to prevent death or “serious risk of substantial and irreversible impairment of a major bodily function.” For physicians considering their professional reputations, threat of criminal prosecution is terrifying and comes with immense financial costs because most hospitals do not pay for criminal defense.

As a physician practicing in Tennessee, I now must guess whether a prosecutor would charge me with a crime when I help women through those 5 percent situations, contending with the spectrum of risks and imperfect predictions. If a woman’s amniotic membranes rupture at 16 weeks, if she is febrile and bleeding, I think the risk of prosecution is low. If she is medically stable but at high risk for infection and hemorrhage, I am not sure.  

I believe the state’s law was intended to be ambiguous and confusing, to make physicians scared to provide abortion care. We’re incentivized to pause, wait, reconsider — actions that can be life threatening. Women with ectopic pregnancies have waited in emergency rooms for hospital lawyers to determine whether an abortion can proceed. We have denied abortion care to women with cancer and other complex medical problems who find out they are pregnant. Women with pregnancies affected by life-limiting fetal anomalies — anencephaly (no skull or brain), renal agenesis (no kidneys, no proper lung development) — have had to seek abortion care out of state. One patient I managed who was unable to receive abortion care ultimately required an emergency hysterectomy and delivered an extremely premature infant, 14 weeks early.

State Senator Richard Briggs, a Republican and a physician, is the Senate sponsor of a bill in Tennessee that would amend the law to provide true exceptions to perform abortions for ectopic pregnancies and lethal fetal anomalies and to prevent maternal death or serious bodily harm. It has been developed with tireless input from physicians and in coalition with other anti-abortion state legislators. But the powerful anti-abortion group Tennessee Right to Life, which crafted the original law, has mobilized against the reform, threatening lawmakers that voting for it will affect their “pro-life score.” The group’s opposition has made the fate of Dr. Briggs’s amendment uncertain. (Right to Life has now lent support to a weaker alternative bill that would remove language about abortion care for women carrying pregnancies with fetal anomalies and may leave open the possibility of criminalizing contraceptive methods that could interrupt implantation of a fertilized embryo.)

Dr. Briggs’s amendment, which I support, is still very conservative and falls short of what I want for women in Tennessee. It does not include abortion exceptions for rape and incest, despite strong support among Tennessee residents for these provisions. It is not clear enough in protecting women who are miscarrying when a heartbeat is still present. Even if the amendment passes, Tennessee’s law will be more restrictive than the anti-abortion laws in nearby states like North Carolina, Georgia and Florida.

But I truly believe that pregnant women will die, if this hasn’t occurred already, as a direct result of the current law. When we deny abortion care to a woman in heart failure or on dialysis, we are gambling with her life.

On the other side, many reproductive rights advocates are wary of incremental changes to abortion restrictions. They have valid reasons: Exceptions in anti-abortion laws allow anti-abortion legislators to control the narrative, distinguishing elective abortions from medically indicated abortions and providing political cover to elected officials whose positions are often out of sync with public opinion even in very conservative states.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research group supporting abortion rights, writes that focusing on exceptions to anti-abortion laws creates a “false hierarchy” of who deserves abortion care. She and others have pointed out that exceptions are often designed in such a way that they are, in practice, nearly impossible to obtain. Critics of incremental change also note that there isn’t always political will for many changes, so you have to fight for what you want. I acknowledge the reality that we may not have the same momentum to eventually make it legal to provide abortion care to women carrying pregnancies with fetal anomalies or who are pregnant from rape or incest, much less abortions done for other reasons. This is the gamble I am willing to take.

In Tennessee the American College of Obstetricians and Gynecologists, of which I am a member, along with the vast majority of my fellow obstetrician-gynecologists, has so far declined requests to champion our reform. The group said it cannot support legislation that does not fully restore abortion rights or that allows for governmental interference in reproductive health care. The association has used similar arguments in refusing to support a far more liberal Ohio referendum that would permit abortions until the point of fetal viability. (ACOG said that it has urged Tennessee members to support abortion access and that it is working in Ohio to craft alternate ballot initiative language.)

I worry that reproductive rights advocates may be digging into untenable positions and failing to listen to those affected most by the current reality. We are at a critical moment for abortion advocacy throughout the country. Do we support incremental changes that provide minimum safety for pregnant women and physicians? Or do we double down on positions that fail to respond to the needs of health care workers and advocates in states with some of the strictest anti-abortion laws? Do we acknowledge that even for some of us who firmly identify as pro-choice, the idea of abortion without any restrictions — abortions in the third trimester without serious fetal abnormalities, for instance — feels uncomfortable?

Reproductive rights groups have brought referendums to defend abortion rights, succeeding even in very conservative states, like Kansas, and revealing that public opinion about abortion is often less conservative than the opinion of state legislators. But that strategy will not work in the nearly half of states that do not have a statewide referendum process, including Tennessee and Texas. In Tennessee, that means any reform efforts must go through a highly gerrymandered Republican-controlled state legislature that is unlikely to change anytime soon. In 2014, Tennessee narrowly passed a constitutional amendment stating that “nothing in this Constitution secures or protects a right to abortion.” In these states, incremental change may be the best, and the only, option for protecting lives and expanding health care.

National organizations must accept the true impact of Dobbs on advocacy efforts. For the foreseeable future, this is a states’ issue. What works for Wisconsin may not work for Tennessee. We need our national organizations and our leaders to engage at the local level, listening to and supporting women and physicians living through this reality. Perhaps it is even time to find common ground with people and organizations on the other side for the sake of patient and physician safety. Progress without perfection is progress and still has value.

After I moved to Tennessee from the Midwest — and after training on the West Coast — I changed as a physician. I had never met women who chose to continue pregnancies after their membranes ruptured early in the second trimester, leaving them vulnerable to serious infections and increasing the chance that their babies’ lungs would not develop without amniotic fluid present, potentially causing death for both mom and baby. I had never met women who chose a cesarean to deliver a baby who would die shortly after birth because they valued a live birth. My 5 percent conversations are gentler and much more focused on patient values and choices, not mine.

But after Dobbs, I always use the word “abortion” because it is my professional obligation to communicate that abortion is health care and a choice that patients have, regardless of state politics. Many women I meet in Tennessee still choose abortion when faced with life-threatening circumstances. We need to ensure they have that option.

Sarah Osmundson is a maternal-fetal medicine physician in Tennessee.

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