Abortion Ban

AFTER 12 WEEKS

Tennessee's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  Tenn. Code Ann. § 39-15-209 (Enacted 1997).

Tennessee's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart.  530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.

Tennessee's unconstitutional law makes the knowing or reckless performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury.  Tenn. Code Ann. § 39-15-209 (Enacted 1997).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

The informed written consent of a woman must be obtained prior to an abortion. Tenn. Code Ann. § 39-15- 202(a) (Enacted 1989). 

A court held that additional provisions of this law, providing biased counseling, physician-only counseling, and mandatory-delay requirements, are unconstitutional.  Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000).

These unconstitutional and unenforceable provisions provide that a woman may not obtain an abortion until the third day following the day the attending physician recites a state-mandated lecture that must include:  (1) the number of weeks elapsed from the probable time of conception and, if more than 24 weeks have elapsed, that the "child" may be viable and the physician has "a legal obligation to take steps to preserve the life" of a viable "child"; (2) that "abortion in a considerable number of cases constitutes a major surgical procedure"; (3) that "numerous" public and private agencies and services are available to assist her during her pregnancy and after the birth of the child and that her physician will provide her with a list of such agencies and services upon request; and (4) the risks and benefits associated with abortion and with childbirth.  Tenn. Code Ann. § 39-15-202 (Enacted 1989; Last Amended 1995).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Tennessee allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Physicians and hospitals.

What does the refusal clause allow? No physician may be required to perform an abortion and no person may be required to participate in the performance of an abortion. No hospital may be required to permit the performance of abortion or accept a patient for an abortion.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Tenn. Code Ann. §§ 39-15-204, -205 (Enacted 1989).

CONTRACEPTION REFUSAL CLAUSE

Tennessee allows certain individuals or entities to refuse to provide contraceptive procedures, supplies, or information.

To whom does the refusal clause apply? Private institutions, physicians, and agents or employees of private institutions or physicians.

What does the refusal clause allow? No private institution or physician, nor any agent or employee of a private institution or physician that objects on the basis of religion or conscience may be required to provide contraceptive procedures, supplies, or information. The refusal to provide contraceptive procedures, supplies, or information shall not be the basis for liability.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for contraceptive procedures, supplies, or information? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Restrictions on Low-Income Women's Access to Abortion

Tennessee prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest.  Tenn. Managed Care Contractor Risk Agreement, §2-3.o.2 (Rev. July 1, 2001) at http://www.tennessee.gov/tenncare/forms/mcoriskagreement.pdf.

Restrictions on Young Women's Access to Abortion

Tennessee law restricts young women's access to abortion.

Is the law enforceable?  Yes.  A federal court reversed a lower court's grant of a preliminary injunction. Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999).

Who is considered a minor?  A young woman under the age of 18 who has never been married or freed by court order or otherwise from the care, custody, and control of her parents.

What is required - parental consent or parental notice?  Consent

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the physician secures the signed written consent of one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  Yes, but only if a criminal charge of incest is pending against a parent; then the signed written consent of that parent is not required.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the physician determines that "a medical emergency exists that so complicates the pregnancy as to require an immediate abortion."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  An appellate court held that it was unlikely that the plaintiff would prevail on its claim that provisions of this parental consent law were unconstitutional, thus reversing a lower court's grant of a preliminary injunction.  Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999).

Other information about the law:  The Tennessee Attorney General has issued an opinion stating that this minors' access law applies to the use of mifepristone because Tennessee law defines abortion as including the use of a drug to terminate a pregnancy.  Tenn. Op. Att'y Gen. No. 01-030 (Mar. 7, 2001).

Targeted Regulation of Abortion Providers (TRAP)

Tennessee prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.

Restrictions on Where Abortions May Be Performed

A court held that Tennessee's attempt to impose a variety of burdensome requirements on abortion providers that are not imposed on other health care providers was unconstitutional and unenforceable. These requirements included:

Any facility used to terminate a pregnancy at any stage is deemed an ambulatory surgical treatment center, and must, therefore, comply with all requirements of ambulatory surgical treatment centers. The statute exempts only those physicians' offices that do not perform a "substantial number" of abortions. Tenn. Code Ann. § 68-11-201(3) (Enacted 1998).

Abortion facilities- including private physicians' offices- and other ambulatory surgical treatment centers, must comply with dozens of administrative, professional qualification, and physical plant requirements. Tenn. Comp. R. & Regs. 1200-8-10-.01 to .14. For example, each facility must have at all times a designated Medical Director who is a licensed physician. Tenn. Comp. R. & Regs. 1200-8-10-.04(9). Each facility must also have one or more surgical suites and those surgical suites are required to meet the same standards as hospital operating rooms, including those using general anesthesia. Tenn. Comp. R. & Regs. 1200-8-10-.06(1)(t) - (v).

A federal court permanently enjoined enforcement of the statute against certain providers due to the vagueness of the phrase "a substantial number of abortions." Bristol Reg'l Women's Ctr., P.C. v. Tenn. Dep't of Health, No. 3:99-0465 (M.D. Tenn. Oct. 23, 2001) (order granting judgment in favor of providers in relation to vagueness of statute).  Subsequently, a state court declared the statute to be unconstitutional and unenforceable in all circumstances. Tenn. Dep't of Health, v. Boyle, No. M2001-01738-COA-R3-CV, 2002 WL 31840685 (Tenn. Ct. App. Dec. 19, 2002).

Tennessee has an unconstitutional requirement that all second trimester abortions be performed in a hospital. Tenn. Code Ann. § 39-15-201(c)(2) (Enacted 1989).

The Tennessee Supreme Court struck down the second trimester hospitalization requirement as unconstitutional under the Tennessee Constitution. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000). See also Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (holding second trimester hospitalization requirement unconstitutionally burdens a woman's constitutional right to choose an abortion).

Restrictions on Who May Perform Abortions

Tennessee prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed or certified by the state may perform an abortion. Tenn. Code Ann. § 39-15-201(c) (Enacted 1989).

An additional law states that no nurse practitioner or physician's assistant may write or sign a prescription for or dispense any drug or medication or perform any procedure involving a drug or medication whose sole purpose is to cause an abortion. Tenn. Code Ann. § 53-10-104(c) (Enacted 1994).