FINAL DRAFT

TMA Statement on What The “Trigger” Law Means to You as a Physician

August 24, 2022

On Aug. 25, Tennessee’s “trigger” law on abortion will go into effect. This follows the U.S. Supreme Court’s ruling in late June overturning the longstanding Roe v. Wade decision in Dobbs v. Jackson Women’s Health Organization, and subsequent action by the U.S. Court of Appeals for the Sixth Circuit lifting a stay on Tennessee’s “fetal heartbeat abortion” law enacted in 2020.

What is TMA Doing on This Issue?
The Tennessee Medical Association has taken a deliberative approach to this issue, with a focus on understanding the changes to the law and their implications on physicians and patients in our state. We have identified areas of concern with the “trigger” statute. TMA will work to eliminate ambiguity in the law as well as protect physicians from prosecution for protecting the lives of mothers.

It is difficult to anticipate all the complications that can occur during pregnancy that could endanger the life of a mother and her unborn child. We strongly believe and will advocate that physicians should not be held criminally liable when providing appropriate treatment in such situations and that harmful delays in care should be avoided.

Since the Dobbs decision was handed down, TMA sought direct feedback from many interested stakeholders in the medical community: TMA members, component medical societies, medical specialty societies, leaders of medical practices and other healthcare organizations in Tennessee, each group having sought guidance on the impact of these developments.

In response, our organization developed legal interpretation resources for members including multiple timelines and scenarios for the weeks preceding the implementation of the “trigger” law and the period following its implementation on Aug. 25. A document is available for members containing legal guidance and interpretation for as many hypothetical scenarios and circumstances as could be conceptualized.

TMA continues to work with government officials, elected representatives and other outside groups to maintain the best possible environment for physicians to effectively practice medicine and deliver high-quality care to Tennesseans. We will continue these efforts until the law protects our physicians from wrongful prosecution.

However, there remain many unanswered questions about the “trigger” law and its impact.

What We Know:
The new law makes it a Class C felony to perform an abortion in Tennessee. There are three exceptions that are not considered illegal abortions that would lead to criminal prosecution. They are:

  • To increase the likelihood of a live birth;
  • To preserve the life or health of the child after birth;
  • To remove a dead fetus.

Additionally, there is an affirmative defense for medical care provided to protect the life of the mother or prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

Unfortunately, meeting all of the elements of the affirmative defense does not bar prosecution for an illegal abortion, but it can be a factor in a decision of a district attorney not to bring charges in the first place. Otherwise, the affirmative defense can only be invoked once a physician is charged. The affirmative defense could be used to justify the removal of ectopic pregnancies, miscarriages, and stillbirths, as examples.

Medical treatment provided to a pregnant woman that results in the accidental death of or unintentional injury or death to the unborn child is not considered a violation.

Our organization will remain diligent in protecting the doctor-patient relationship while ensuring TMA members understand how these laws and regulations impact the practice of medicine. Patients need to know that physicians, when providing care in life-threatening situations, are committed to protecting their health and lives.

A comprehensive analysis of the laws and their implications – including an FAQ document with legal interpretation – is available for TMA members to access at tnmed.org/lawguide. Members may contact the TMA legal department at 615.385.2100 or legal@tnmed.org for guidance in interpreting laws and regulations.