Law will punish doctors for saving
women's lives via abortion | Opinion

Chloe Akers
Thu, September 15, 2022
Knox News | The Knoxville News-Sentinel

The Tennessee trigger ban on abortion makes it a crime to terminate a pregnancy for any reason. There are no exceptions to the law − not for rape, incest or even in cases where the life of the mother is in danger. Instead, the law contains only a narrow affirmative defense.

As United States District Court Judge B. Lynn Winmill recently explained, “An affirmative defense is an excuse, not an exception. The difference is not academic. The affirmative defense admits that the physician committed a crime but asserts that the crime was justified and is therefore legally blameless. And it can only be raised after the physician has already faced indictment, arrest, pretrial detention, and trial for every abortion they perform.”

As it stands, physicians in Tennessee now face the possibility of prosecution every time they perform an abortion. And while the law does offer a narrow affirmative defense, this defense is available only if proven to a jury after arrest, during an expensive and burdensome trial.

Contrary to a recent suggestion by Stacy Dunn, president of Tennessee Right to Life, the impact of this law has nothing to do with its actual prosecution. Instead, the impact of this law, like all laws for that matter, turns on the possibility of prosecution.

Demonstrators hold signs and chant together in support of abortion rights as they march along Gay St. in downtown Knoxville during the Bans Off Our Bodies March on Tuesday, July 5, 2022.

It is simply the possibility of being arrested and going to prison that keeps folks from committing crimes. The threat alone is enough. The law recognizes this as the principle of general deterrence, a concept built around the idea that criminal conduct can be prevented through fear of retribution, i.e., prison sentences. To the extent fear is quite a strong motivator, it tends to work.

Of course, the concern here is that the criminal conduct deterred by this law is not something like robbing a bank or driving drunk – instead, it’s a medical procedure sometimes necessary to treat complications of pregnancy and keep women alive. The result is that we now live in a state where the mere existence of this law puts doctors in fear of performing this procedure, regardless of the circumstances, because terminating a pregnancy is now a Class C felony, a crime that carries up to 15 years in prison and a $10,000 fine.

It is also worth noting that enforcing this law, while not necessary to achieve its deterrent effect, is not a choice to be made by what Dunn refers to as “rogue prosecutors.” In Tennessee, all district attorneys have a legal duty to prosecute all violations of the state criminal statutes. In fact, earlier this summer when asked about district attorneys who would not enforce the trigger law or make it a low priority, Will Brewer, legal counsel for Tennessee Right to Life, responded, “in order to effectively do their jobs they need to make sure these laws are prosecuted to the fullest extent.”

The bottom line is this: The law Dunn’s organization worked so diligently to create, a law ironically referred to as the Human Life Protection Act, criminalizes a medical procedure without exception. Sometimes this medical procedure is necessary to save a mother’s life. While the law does not need to be enforced to be feared, enforcement is not only required, but even endorsed by Dunn’s own legal counsel.

This law does not protect life. This law threatens life.

I just hope we can change it before it actually takes a life.

Chloe Akers is a Knoxville-based criminal defense attorney in private practice.

This article originally appeared on Knoxville News Sentinel: Opinion: Law will punish doctors for saving women's lives via abortion