Gov. Bill Haslam signs strict late-term abortion ban

Gov. Bill Haslam signed a strict new abortion measure into law on Friday, drawing praise and sharp criticism. 

The measure will further limit the few abortions already performed in Tennessee past the point of fetal viability — and potentially send doctors to jail if they fail to prove in court that an abortion of a viable fetus was necessary to save a woman's life or prevent substantial or irreversible harm to a "major bodily function of a pregnant woman." 

Tennessee becomes one of at least 21 states that explicitly ban abortions beyond viability, but the measure, called the Tennessee Infants Protection Act, goes further than most other bans and could become the subject of a lengthy court challenge.

Tennessee Attorney General Herbert Slatery in early April called the measure "constitutionally suspect" by placing a doctor acting in good faith at risk for felony prosecution.

Slatery also questioned whether a lack of an exception for a woman's emotional or mental health could survive a legal challenge.

Slatery later pledged to defend the bill after it was amended to require two doctors' opinions on fetal viability — but the final measure does not contain any exceptions for mental health risks to the pregnant woman. 

“The Tennessee Attorney General has said he would defend this law, and the United States Supreme Court has not yet decided the mental health exception issue discussed in the Attorney General’s opinion," Haslam said in a statement. "For those reasons, I have signed this legislation into law.

“The Tennessee Infants Protection Act prohibits purposely performing post-viability abortions, except when a physician determines in his or her good faith medical judgment that either the unborn child is not viable or that the procedure is necessary to prevent serious risk to the mother," Haslam said.

"Rather than being a '20-week abortion ban,' as some have described it, the bill requires physicians to assess viability beginning at 20 weeks gestational age, absent a medical emergency." 

Haslam indicated he would support the legislation earlier this week after the close of the legislative session, saying "actually it's a 24-week" ban.

Tennessee Right to Life praised Haslam's decision and the legislature for its action.

"(Haslam's) administration has been tireless in supporting common-sense measures which affirm the dignity of human life in our state, and pro-life Tennesseans are clearly very grateful to the governor," said Brian Harris, president of Tennessee Right to Life.

Doctors groups, Planned Parenthood of Middle and East Tennessee and the American Civil Liberties Union opposed the measure, with the American College of Obstetrics and Gynecology noting there is no definitive testing for viability. 

The ACLU delivered a letter to Haslam's office Friday urging him to veto the legislation, arguing the law was unconstitutional and infringed on a woman's right to make her own medical decisions. Haslam was in West Tennessee speaking to community college graduates.

ACLU of Tennessee Executive Director Hedy Weinberg said she was "disappointed" to hear that Haslam had signed the bill.

"While we may not all agree about the right to abortion, it is important that we support a woman and allow her to make the best decision for her health and personal circumstances — without political interference," Weinberg said in a statement.

Mary Mancini, chair of the state Democratic Party, said the move puts Haslam alongside "extremists" in the Republican Party.

"Haslam should know that if Republicans legitimately wanted to find real solutions to this serious issue they would help Democrats do so through smart public policy, like age-appropriate reproductive health education that includes teaching abstinence and access to affordable health care and contraception," Mancini said in a statement.

Other groups had visited Haslam's office this week pushing for a veto.

Jeff Teague, executive director for Planned Parenthood of Middle and East Tennessee, also criticized the move, saying the new law only makes it more difficult for women to access "safe and legal abortions."

"It just shows (Haslam and the Republican Party) are more interested in playing politics than putting the interests of women and families first," Teague said.

The new law comes as Tennessee remains embroiled in two long-running legal challenges to abortion policy. 

A 2015 challenge to a 48-hour waiting period required by women seeking an abortion continues in federal court.

That lawsuit filed by the operators of two abortion clinics also challenged a requirement that the state's abortion clinics meet the standards of hospital-like ambulatory surgical treatment centers and a 2012 law requiring doctors who perform abortions to obtain admitting privileges at a local hospital. State lawyers agreed in April to stop enforcing those two measures after the U.S. Supreme Court ruled similar Texas laws to be unconstitutional.

Yet another legal challenge involving Tennessee abortion policy heads to the 6th Circuit Court of Appeals. That challenge involves a dispute on how votes were counted for the 2014 voter-approved Amendment 1 ballot measure, which stripped the right to an abortion from the Tennessee Constitution. If successful, that challenge could invalidate all abortion laws enacted by lawmakers in the past three years. 

No oral argument date in that case has been set. 

The new abortion measure signed into law by the governor requires doctors performing an abortion to test for fetal viability after 20 weeks of pregnancy — and to get a second opinion about viability from another physician. 

Fetuses aren't thought to be viable before 24 weeks, and physician groups say there is no standard test for viability.

The law also includes only narrow exceptions to the abortion-after-viability rule: a woman's life or substantial or irreversible damage to vital organs.

Efforts by state Democrats to include exceptions for rape or incest failed.

The Tennessee Medical Association, which has 9,000 physician members statewide, was neutral on the issue of abortion, and officials said they would have to work with doctors, which are now subject to felony charges if they violate the law.

"We will proactively communicate the details of the new law (along with other new laws impacting medical practices) so doctors can stay compliant and avoid civil or criminal penalties," Dave Chaney, vice president of TMA, said in an email.

The law requires doctors performing abortions after 20 weeks to be able to affirmatively prove in court that the fetus was not viable and that the mother's life or physical health was in substantial and irreversible jeopardy.

Doctors found to have violated the law could be subject to up to three years in prison and have their licenses revoked. 

Prior state law allowed abortions past the point a fetus could live outside the womb if the woman's health or life was at risk.

An affirmative defense is similar to claiming self-defense in a criminal case, where defendants claim extenuating factors were present that make their actions legal.

No abortion clinics operating in Tennessee provide abortions past 16 weeks.

Department of Health abortion data show that less than one-tenth of a percent of all abortions performed in Tennessee occur between 17 and 20 weeks, but the state does not track abortions at 20 weeks or later.

About 1.4 percent of abortions are reported as occurring at unknown points in pregnancy, and state officials say it is possible that some include post-20-week abortions. Those would have to be performed in hospitals. 

Reach Anita Wadhwani at awadhwani@tennessean.com or 615-259-8092 and on Twitter @AnitaWadhwani. Reach Jake Lowary at jlowary@tennessean.com or on Twitter at @JakeLowary.