Yes, anti-choice groups want to eliminate the life-saving exceptions in abortion bans

For eight months, I lived under a complete abortion ban that made it a felony for a doctor to save my life.

Dec 09, 2024

On November 25, 2024, feminist writer Jessica Valenti published a piece titled “Conservatives Want to End 'Exceptions' for Women’s Lives,” in which she noted that anti-choice activists have been “laying the groundwork to eradicate the exception since Roe was overturned.” Valenti is correct in her assertion that anti-choicers want to completely eliminate the exception to abortion bans that allows physicians to perform life-saving abortions. Her observations of anti-choice efforts to this end is also correct. However, anti-choice efforts to completely prohibit all abortions - even those necessary to save someone’s life - started long before the Dobbs decision overturning Roe v. Wade.

For eight months, I lived under a complete abortion ban that made saving my life a felony punishable by up to 10 years in prison.

The main character in this story is the Nation Right to Life Committee’s state affiliate, Tennessee Right to Life. The organization “is part of a network of Christian special-interest groups that represents a minority of voters but wields outsized influence in Republican-majority legislatures.”1 “Tennessee Right to Life issues an annual scorecard rating lawmakers on their fealty to “pro-life” positions and plows money into primary campaigns to unseat candidates viewed as insufficiently loyal.”2

Tennessee Right to Life wrote Tennessee’s abortion ban. Once the law came into effect, the organization vigorously fought attempts by legislators to pass an amendment adding an exception to the law to save women’s lives. This fight included threats, retaliation against lawmakers, and a well organized pressure campaign.

Yes, anti-choice groups want to eliminate the exception to save women’s lives. I’ve seen it.

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“The law criminalizes all termination, without exception, without making any attempt to differentiate between an elective termination and a medically necessary one.”

(Chloe Akers, criminal attorney in Tennessee)

Criminalizing care

With Trump in office and two new Trump-appointed, far right justices on the U.S. Supreme Court, the anti-choice movement anticipated that Roe v. Wade would be soon be overturned. Opponents of reproductive health autonomy and rights began crafting and passing abortion ban “trigger laws” designed to take effect once Roe was gone.3

In 2019, less than five years after the Nation Right to Life Committee’s Tennessee affiliate, Tennessee Right to Life, led a successful campaign to strip citizens’ of our right to abortion - even those necessary to save our lives - from the Tennessee Constitution, the state legislature passed a “trigger” abortion ban. It was written by Tennessee Right to Life,4 and it completely banned all abortions in all circumstances, no exceptions— zilch, zero.56

Before the trigger ban was signed into law, it “did not receive any serious scrutiny by Tennessee state legislators. Indeed, when one of the bill’s sponsors was asked to explain the rationale for one provision of the bill, she could not do so, responding only that it had been vetted by Tennessee Right to Life.”7 Others lawmakers had “simply ignored warnings four years ago that the anti-abortion bill would ‘criminalize’ physicians and voted to enact the ‘trigger’ bill.”8 No Tennessee physicians who attended the legislative session prepared to address the bill were was given the opportunity to speak.910

Tennessee Right to Life engaged in sustained lobbying for the trigger ban.1112 Earlier that legislative session, when a competing abortion ban, which contained exceptions,1314 was introduced in the legislature, Tennessee Right to Life joined forces with Tennessee’s Catholic bishops to quash that proposal.151617

[Full disclosure: I was still semi-involved in the “Pro-Life” Movement at this time. Upon request, I lobbied for the ban that contained exceptions, and vocally opposed Tennessee Right to Life's trigger ban bill.]

Tennessee Right to Life won the legislative battle, and Governor Bill Lee signed the trigger ban bill, ironically named the Human Life Protection Act, into law on May 10, 2019.

Under the law, “[a] person who performs or attempts to perform an abortion commits the felony offense of criminal abortion. Criminal abortion is a Class C felony.”— And that even “applies to cases involving saving the life of a mother.”18 Chloe Akers, a criminal defense attorney in Tennessee explained the law in an interview with WBIR News: “The law criminalizes all termination, without exception, without making any attempt to differentiate between an elective termination and a medically necessary one.”19

The only concession the bill offered for doctors was a provision that allowed doctors who commit criminal abortion to use an affirmative defense during their prosecution to argue “that the abortion was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function” (which the law fails to define).— An affirmative defense allows a defendant charged with a crime to admit to committing that crime, but present a defense to, hopefully, prove to a jury that the defendant shouldn't be held liable for committing the crime because of extenuating circumstances. The defendant arguing an affirmative defense is presumed guilty and has the burden of proof on establishing, in court during trial, that the affirmative defense applies to the circumstances of their crime.

Tennessee Right to Life's parent organization the National Right to Life Committee, which “helped write and lobby for so-called trigger bans… in Republican-majority statehouses across the country,” has also “released model legislation suggesting it would like to see similar language [to that found in Tennessee’s trigger ban] adopted across the country, not weakened by exceptions.”20

"The state has chosen zero lives over one life right now, in the cases where we know the baby won’t survive. That’s not a pro-life position. But that’s what the state is doing with these [women’s] lives.”

(Dr. Michael DeRoche, Maternal-Fetal Medicine specialist in Tennessee)

State-created maternal harm

Tennessee’s trigger ban, the Human Life Protection Act, went into effect on August 25, 2022. Immediately, patients began experiencing the adverse consequences caused by this “total abortion ban, which required[] physicians to knowingly commit a felony when performing an abortion to prevent the death” of the patient.21 The penalties for felony abortion “are three to 10 years in prison and up to $15,000 in fines. Doctors could expect to lose their medical license just for being charged.”22

Doctors were forced to send patients with high-risk conditions across state lines for care.232425 A patient who was “at risk of a severe form of preeclampsia that can cause seizures and ultimately death” and whose fetus had been diagnosed with a fatal anomaly, had to be sent “on a roughly six-hour ambulance ride to end her pregnancy in North Carolina, where she arrived with dangerously high blood pressure and signs of kidney failure.”26

Another patient was diagnosed with a cesarian scar ectopic pregnancy, an extremely dangerous condition that, left untreated, results in several hemorrhage and even death.27 She “was frightened, did not have the resources for a prolonged hospital admission, had no support to care for her children, and did not want to die and abandon her children.”28 The patient was sent to Mississippi, where doctors could save her life without committing a felony.29 Her physician, Dr. Michael DeRoche, a Maternal-Fetal Medicine specialist, lamented, "The state has chosen zero lives over one life right now, in the cases where we know the baby won’t survive. That’s not a pro-life position. But that’s what the state is doing with these lives.”30

Other patients’ care had to be delayed because of the presence of detectable fetal cardiac tones, causing patients’ health to dangerously deteriorate. For example, a patient’s water broke too early, creating “a very high risk the patient would get an infection.”31 This situation is time-sensitive; because the cervix is open, life-threatening infection in the uterus can quickly take hold. “The longer the provider waits” before evacuating the uterus, “the greater the risk that the infection could spread and the patient could become septic and need ICU-level care. That’s why… [doctors] intervene well before the patients’ lives are in danger.”32 This patient’s “fetus still had [detectable cardiac tones], but there was virtually no chance it would survive.”33 “But because of the law, the woman was sent home without the option of abortion care. She came back with emergency bleeding and sepsis, a life-threatening infection.”34

Other patients were forced to continue dangerous pregnancies that resulted in serious harm to their health and emotional well-being, such as Nicole Blackman, who lost much of her eyesight, and Mayron Hollis, who lost her fertility and nearly lost her life (you can read her story here).

In October 2022, more than 700 Tennessee medical professionals sent a letter calling on the state’s GOP-super majority Legislature to change the state’s abortion ban.35 Their letter was published in a full page ad in The Tennessean on October 9, 2022. Soon, the number of medical professionals adding their name to the letter swelled to over 1000.

As I noted above, back in 2019, when the trigger ban was passed, legislators payed little to no attention to what the bill actually said before voting for it.36 But after Roe v. Wade was overturned by the Dobbs decision on June 24, 2022, and as the harms caused to patients began to appear in local and national news, legislators were confronted with what they had signed off on so carelessly. Some legislators said that, when they had passed the trigger ban, that “they didn’t understand the ‘affirmative defense’ provision of the bill, which required[] doctors to defend themselves in court after being charged with a felony.”37 Others said that they had simply assumed the bill has medical exceptions.38 While top Republicans continued to defend the law,394041 legislators began to publicly voice a desire to amend the ban.4243 One legislator, Republican state Senator Richard Briggs, a retired surgeon, was particularly outspoken in his desire to amend the state’s brutal abortion ban.

“We passed this law to put our state in a strong position. And we need to defend this law.”

(Will Brewer, legal counsel and lobbyist for Tennessee Right to Life)

Anti-abortion panic

As more legislators became open to amending Tennessee’s total abortion ban, the Human Life Protection Act, anti-abortion groups began to panic. On Oct. 27, 2022, two months after the trigger ban had taken effect, Tennessee Right to Life, the state affiliate of National Right to Life, “held a webinar to encourage GOP legislators to hold the line.”44 “During the hourlong meeting, representatives of Tennessee Right to Life and Susan B. Anthony Pro-Life America urged the legislators to stay the course and protect the nation’s ‘strongest’ abortion ban as it stands.”45 Anti-abortion group participants included:

Will Brewer, legal counsel and lobbyist for Tennessee Right to Life;
Katie Glenn, state policy director at SBA Pro-Life America;
Stephen Billy, vice president for state affairs at SBA Pro-Life America; and
David Reardon, researcher with the Charlotte Lozier Institute (SBA Pro-Life America’s non-profit arm).

Opening the meeting, “Brewer, the legal counsel and lobbyist for Tennessee Right to Life, implored lawmakers not to tell the press that they had only voted for the law because they thought Roe would never be overturned. He urged them not to agree to any calls for clarification or new exceptions.”46

The anti-abortion leaders told state legislators that “they see Tennessee’s ban… as the best example of a law that protects every potential life — even when it means pregnant patients must face serious risks or trauma in the process.”47 Brewer told the legislators, “We passed this law to put our state in a strong position. And we need to defend this law.”48

A few months earlier, in an interview with Tennessee Lookout, Will Brewer had been asked why Tennessee Right to Life had not included an exception in the Human Life Protection Act to allow for abortions that are necessary to protect the life of the pregnant human. In response, he deceptively said that an exception to protect a pregnant person’s life was “not really a relevant part of the statute,” because “the statute deals with elective abortions.”49 But in the October 27th meeting, Brewer said that abortions that are necessary to save a patient’s life, because the patient’s preexisting health conditions meant that pregnancy could likely kill her, are “quasi-elective abortions.”50

Complimenting Tennessee, Katie Glenn, state policy director for Susan B. Anthony Pro-Life America, categorized abortions necessary to protect a patient’s life or health as elective. “The way that many state laws work is they’ll say, ‘Abortion, elective abortion, is generally illegal except in these situations.’ So it could be ‘except to save the life of the mother,’ ‘except if there is a substantial, irreversible bodily health risk,’ ‘except for cases of rape and incest’... What y’all did is you said, ‘Elective abortion is illegal all the time,’” she said (emphasis mine).51

Glenn also said that providing patients, such as those in the middle of an active miscarriage, with medications that induce abortions - which is standard of care for miscarriage management - “should not be permitted under the law because the process takes multiple days.”52 “Nothing about that is an emergency,” she said.53

During the meeting, anti-abortion leaders also stressed the importance of ensuring that doctors are required to commit a felony to save a pregnant person’s life. “The burden of proof, the onus, is on the doctor to prove that he or she was in the right,” on activist said.54 Leaders urged Tennessee lawmakers to keep the affirmative defense intact and to oppose making any changes to the law.

“It could be ‘Tennessee Right to Life under certain conditions.’ It’s certainly not Tennessee Right to Life for mothers.”

(Tennessee state Senator Richard Briggs)

Retaliation

After the meeting, Republican state Senator Richard Briggs, a physician, said “he felt the anti-abortion lobbyists were ‘skirting around’ serious health care questions that the law’s language fails to address and instead were presenting ‘a simpleton’s message.’”55 To him, “the anti-abortion lobbyists were asking lawmakers to respond to legitimate questions from voters with answers that weren’t based in science.”56

“In past years, Briggs often earned a 100% rating on Tennessee Right to Life’s scorecard for legislators who support the group’s policy priorities. But as outcry over the ban grew, he found himself agreeing with medical providers who said the law had gone too far.”57

“They really don’t want me talking when I bring up these medical issues,” Briggs said.58 He was right.— On December 14, 2022, The Tennessee Right to Life PAC revoked his endorsement.

“Senator Briggs pledged to us… that he would protect unborn children by protecting the Human Life Protection Act from hostile amendments… Senator Briggs now claims that he does not support the HLPA… The Human Life Protection Act is doing exactly what members of the General Assembly intended – saving… lives every month in our state. We are grateful to all the members who voted for the legislation and now stand behind that vote. That is what integrity looks like. We hope Senator Briggs will work to regain our trust and use his medical expertise to recognize the unborn child as a patient deserving of care,” said Tennessee Right to Life PAC President Roger Kane.59

“I applaud the PAC’s decision to revoke Senator Briggs’ endorsement. While I respect disagreements from trusted colleagues, Senator Briggs’ mass publicity tour is more than a mere disagreement. Once his election was over and he had secured the political benefit of the PAC’s endorsement, he reversed course on his views. He has engaged in a media tour to justify his actions and has even posed for photo shoots to make himself the headline for hostile articles set out to tear down the Human Life Protection Act. His constituents deserve better than a legislator who only votes for legislation because he never believes it will come to fruition and then reverses his philosophy only when it is least consequential,” Will Brewer, legal counsel and lobbyist for Tennessee Right to Life, said in a statemen.60

“It could be ‘Tennessee Right to Life under certain conditions,’” Briggs later said.61 “It’s certainly not Tennessee Right to Life for mothers.”62

A couple of months later, as the House Population Health Subcommittee considered adding an amendment to Tennessee’s total abortion ban to save the pregnant person’s life, Will Brewer said, “I would not consider this a pro-life law.”63 He then told lawmakers that Tennessee Right to Life would retaliate against any lawmaker who supported the amendment. “And in discussions with our [political action committee], they have informed me that they would score this negatively for those members that wish to vote for it,” he said.64

“Brewer’s invocation of the anti-abortion group’s scorecard provoked a strong response. As the hearing wrapped up, Tennessee’s House speaker, Cameron Sexton, appeared in the chamber.”65 Sexton sais, “Something happened that I’ve never experienced in my time down here, which was somebody on a committee testifying tried to intimidate our members by telling them they’re gonna score them a vote.”66 Lawmakers were aghast at Brewer’s threat.67

“If the intent of the ‘trigger’ bill is to not save the life of the mother, then no clarification is needed.”

(Tennessee House Speaker Cameron Sexton)

Crusade against women's lives

At a hearing in February 2023, the House Population Health Subcommittee considered adding a modest amendment to Tennessee’s total abortion ban to save the pregnant person’s life. Through Will Brewer, Tennessee Right to Life made its position known. “I would not consider this a pro-life law,” he said, before threatening lawmakers with retaliation (as noted above).68

The amendment's sponsor, Republican Rep. Esther Helton-Haynes, a nurse, said that “she considerd[] the legislation a ‘truly pro-life bill.’”69 “No one wants to tell their spouse, child or loved one that their life is not important in a medical emergency as you watch them die when they could have been saved.”70 “Something goes terribly wrong in their pregnancy, and I feel physicians shouldn’t have to hesitate when they know what needs to be done to take care of these mothers,” she added.71

Other legislators agreed, noting that an affirmative defense “endangered doctors professionally and put them in the position of being charged with a felony for performing an abortion in an effort to save women suffering through dangerous pregnancies.”72

“Brewer, however, contended that doctors shouldn’t be able to make their own decisions about ending pregnancies without going through a series of steps, including sending women home in hopes that problem pregnancies would ‘work themselves out.’”73

“There are issues with pregnancy that could be considered an emergency… that work themselves out,”74 he said, adding that “when faced with a patient’s high-risk condition, doctors should be required to ‘pause and wait this out and see how it goes.’”75 Brewer's “statement brought near jeers from the audience in the meeting room. And some lawmakers told him even though they respect his organization they couldn’t believe he would want to put women’s lives at risk to save a doomed pregnancy.”76

“These things need to be addressed early on,” said Republican state Representative Andrew Farmer, “adding that he didn’t want doctors to feel they needed to consult a lawyer before offering care that could stop a condition from progressing into an emergency.”77 But Brewer argued that the amendment woukd “allow[] for ‘quasi-elective’ abortions that don’t have to be done immediately but can be performed to prevent ‘future’ medical emergencies.”78 He said that “he believed giving doctors that kind of power would be too subjective.”79

“Once one doctor is let off the hook in a criminal trial, it would be open season for other doctors who wanted to perform bad faith terminations,” Brewer said, reflecting anti-abortion activists’ willingness to risk women’s lives simply because they personally don't trust doctors.80

Necertheless, the House subcommittee approved the amendment on February 14, 2023.

But then everything went south.

Tennessee Right to Life, along with another anti-abortion group, Tennessee Stands, began “targeting members of the Population Health Subcommittee, mainly Republicans, and urging people to call and email them after they approved legislation designed to change the ‘affirmative defense’ provision in state law in an effort to stop the ‘criminalization’ of physicians who save the lives of women involved in deadly pregnancies.”81 Gary Humble, the head of Tennessee Stands, “sent out a video link saying, ‘What kind of Republicans vote for legislation to weaken abortion laws in Tennessee?’”82

Emails sent by Tennessee Right to Life to its supporters contained intentionally deceptive accusations. One Republican lawmaker remarked with frustration and astonishment, “I never expected them to stoop to the level of misinformation… They’re just saying anything they can say to make us look bad, and that’s just not professional.”83

Exasperated, House Speaker Cameron Sexton “pointed out the ‘trigger’ law makes saving the life of the mother a Class C felony that requires the physician to prove their innocence, ‘meaning they are automatically considered guilty.’”84 Sexton said, “If the intent of the ‘trigger’ bill is to not save the life of the mother, then no clarification is needed.”85

In an op-ed at The Tennessean, Angela Maden, vice president of Tennessee Right to Life, urged lawmakers not to amend the law.86 And “in recorded comments Will Brewer made to a West Knox Republican Club… Right to Life's Brewer said the group continues to oppose Briggs' Senate bill with the original good faith standard because it would be too difficult to prosecute a doctor if the law was changed.”87 “It is nearly impossible to prosecute somebody for what they, as an individual, believe was right in the moment… [N]o DA could successfully prosecute that doctor under this law because you can't get in somebody's head in the moment,” he said.88

Eventually, Tennessee Republican legislators caved to the pressure. Legislators widdled the amendment down and it stalled in the house.

In March, the amendment bill was completely replaced with one written “by the governor’s office and the Senate speaker’s office with help from the attorney general’s office.”89 The new bill simply changed the affirmative defense to an exception, eliminating the clarifying language found in the original amendment bill, and clarified that terminating ectopic and molar pregnancies would no longer be considered abortions under the law's definition.90

Governor Bill Lee signed the bill into law on April 28, 2023, against the wishes of Tennessee Right to Life.

Ingrid Duran, the legislative director for National Right to Life, later acknowledged that “her organization didn’t want to see changes to [Tennessee’s ban], but, she said, ‘I understand why they needed to do that, just to remove the wind from the sails of the opposition.’”

Neither Tennessee Right to Life or National Right to Life have ever recognized or taken responsibility for the maternal harms caused by their law.

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