Lawyer's mission: Translate Tenn.'s bewildering abortion ban

There is a city in the state of Tennessee. She is a criminal defense attorney. She didn't think about abortion until a few months ago, when she realized she had to defend someone accused of doing one.

The Supreme Court's decision to overturn the Wade decision changed that. Tennessee has a criminal abortion statute.

It doesn't matter if she likes a law or not, she doesn't like many of them. She looked at it the same way she would any other statute. What would it take to enforce it?

She was taken aback. She may have read it more than once. She was missing something, right?

Tennessee's law is very strict. It makes it a Class C felony to perform an abortion. No exceptions are allowed. This is the part that Akers has since found herself having to repeat, often eliciting raised eyebrows and deeply drawn breaths, because the law does not explicitly exempt abortions performed to save a mother's life.

Doctors are offered anaffirmative defense. The difference is significant in criminal law. It's illegal to perform all abortions. The law requires the doctor to convince a court that the procedure was necessary.

She ran down the hallway looking for her colleague.

She explained criminal law to a few of her followers on the photo-sharing site. She looked into the camera and said that there were no exceptions for rape, incest or those who were so desperate they threatened to end their lives.

She said that the legislature wasn't having any of that. The criminalized abortion was straight up.

She would have brushed her hair and spit out her gum if she knew that 2 million people were going to watch her video.

She tried to explain the affirmative defense in a way that people with no law degree could understand. A prosecutor could decide not to charge the person who killed someone. That is up to the prosecutors. The courts are at the discretion of the defendants.

It might not happen to you. She said that it would happen here. She said "You know exactly where to find me" for those who were frightened or confused.

They did. She couldn't keep up with the flood of messages.

The mayor's letter was written. She was invited to give a presentation at dinner parties. Doctors asked for help. She was asked by a women's motorcycle club to speak with them.

The law went into effect on August 25. She quit her job at a law firm to start a nonprofit. She has been on a tour of the state to explain the law to doctors and the lawyers who might have to defend it.

A doctor asked a question as she got off the stage after her latest stop.

Is this going to be enforced?

Akers answers the same.

I don't understand.

That's right.

Akers watched a video and received a message from an OB- GYN.

She said she needed to know you. People and doctors will be confused by the affirmative defense. The patient needs to be close to death.

Zite used to provide abortion care for pregnancies that threatened the life of the mother and for those where it was clear the fetus wouldn't live. They are not allowed in Tennessee anymore.

Parents who decorated their nurseries decided on names for their babies. She said it was devastating. The law forbids mothers from ending their pregnancies if the baby will not survive.

She has treated two ectopic pregnancies, where the baby is growing outside the uterus and in the fallopian tubes. If an ectopic pregnant woman is allowed to continue to grow, she can die. Standard treatment is terminated. Zite looked over her shoulder.

Is it possible that someone disagrees with me. She wondered if she would go to jail.

Zite is on the executive committee of the Tennessee section of the American College of Obstetricians and Gynecologists, which issued a statement that the law might lead doctors to hesitate, to contact lawyers in the midst of medical emergencies.

One day soon in Tennessee, a doctor will see a woman whose water breaks weeks before viability. She won't be on her death bed but will be in the hospital.

After Texas passed its six-week abortion ban, researchers studied 28 patients who were enduring dangerous pregnancies and hospitals misinterpreted the law to mean they had to delay care until the patient became sicker. In states where abortions are immediately available, more than half of patients suffer serious health problems.

The criminal justice system is now at the mercy of Zite. I don't know if I'll win. I believe so. I don't know if I want to go through that. It is not possible to say yes. I don't want to feel guilty until I'm proved innocent.

She was going to be the medical director. The doctors were asked what they were afraid of.

Akers can't stop thinking about an oncologist who described a scenario where pregnant women are diagnosed with cancer when they can't receive treatment.

Doctors used to have difficult conversations with patients about how they wanted to proceed. They could delay treatment to make sure their cancer doesn't grow. They can either save their lives and try for a baby once they're well, or they can end their lives.

The doctor was asked by Akers what they would do in that situation.

The doctor asked what they were asking.

That's right.

Akers knows what's going on. Her client's freedom is at stake every time she speaks. The stakes seem higher here.

She is losing weight. She doesn't sleep much. She woke up at night with a lot of questions.

What about insurers? Will they pay for a abortion if it is legal? Is it possible that they would be an accessory like a driver?

What about people who work in nursing homes? A doctor?

The state requires providers to report every terminated contract. The constitution protects against self-incrimination and forcing them to make evidence against themselves would violate that.

I opened a box and thought there was a question. She said that there were 10 more questions that came up and 10 more from that. It is frustrating that I feel like I am on a merry-go-round.

She thought of her tour as a pragmatic attempt to explain the law without being involved in the abortion wars. She wouldn't take the debate to other people.

She is angry about the confusion that continues to swirl around the law. Legislators insist that the exemption to save the mother's life is included.

I am not sure how many other ways to say there is no exception. We can't say that it won't be prosecuted. People might wonder why she is so detail-oriented. Because I work for a law firm.

There are words in a courtroom. She spent a lot of time arguing with prosecutors. She can't imagine telling a judge that her client thought there was an exception.

She has practiced criminal defense for 15 years and is familiar with the brutality of the criminal justice system.

There is hope in people. Someone is not going to prosecute this because it is so contrary to what we think of as fair and just. That's right, she said. I've seen cases that made your skin crawl.

The courts have thrown the book at people with mental illness.

She said so to the doctors in Nashville.

I don't know if this law will be enforced. I do. Why write laws in the first place?

That's right.

Will Brewer is an attorney and lobbyist with Tennessee Right to Life.

It will be hard to find a prosecutor that will prosecute a doctor when they can back up their claim that they saved the mother's life.

When the sole reason for abortion is that the mother doesn't want a baby, the law should be interpreted to only apply to elective abortions.

He said the wording was chosen because it raised the bar for doctors to perform abortions. He said that exemptions are easy to abuse. The goal was to be a narrow window where abortions could be justified.

To prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function, the law requires doctors to show that the abortion was necessary.

It doesn't mean death is imminent and it doesn't mean every decision will be second-guessed.

He said that the line between an exemption and a defense was the same as always. Make sure the due diligence was done and that the law was treated seriously.

Affirmative defense language was used in Ohio laws for a long time to ban later-term abortions.

Did any doctors violate any of these laws? He said no.

Danielle Bessett is a professor at the University of Cincinnati. 35 Ohio physicians working in hospitals and private practice weren't included in the focus groups.

Doctors said they felt powerless. They said they would have to wait until the patient became sicker to perform the abortion. If a patient was in good health, they were told to go out of state for the procedure.

Bessett said that pregnancy problems are not black and white. There were cases in the gray area where serious health consequences were not imminent but likely.

She said that the Ohio laws only govern later-term abortions. The number of times a abortion could be questioned in court will increase as a result of the post-roe laws in Tennessee.

Tennessee has a ban similar to Idaho's. Affirmative defense for rape or incest is included in the wording. While Tennessee protects the mother from death or serious injury, Idaho allows abortion only to prevent death.

The United States Department of Justice sued that state, arguing that the ban would cause hospitals to violate federal law.

Part of the ban was blocked by a federal judge.

In the real world, no prosecutors would ever bring charges against a doctor for performing an abortion on a sick patient, according to lawyers for the state.

Winmill wasn't sure if he was skeptical. He wrote that they asked him to ignore what the law said. Criminal what doctors do to care for patients. The court was told by a gynecologist that physicians were worried about the impact of the law as if it was a large meteorite headed towards Idaho.

Winmill wondered if the law meant what it said.

That's right.

A doctor called for help when Akers was on her way home from Nashville. If she hesitates too long and a patient suffers, she could be liable for malpractice.

There is a fine tightrope where you can follow the laws. If you fall one way, you commit a felony and if you fall the other way, you can be sued for malpractice. She said it felt like it was impossible. I don't know what to do.

The most dangerous pregnancies are her specialty. Complications that are uncommon for most doctors are not uncommon for her obstetrician. She doesn't know if the new law will make staying in Tennessee too risky.

Akers said that the women of Tennessee needed him. She fears that doctors will move to states where they don't have to worry about being jailed for doing their job.

Her sister survived a high-risk pregnancy with twins because she had top-notch care. All of her neighbors should get the same treatment. A lifelong Republican and fellow lawyer gave birth to a baby after a high risk pregnancy. She thought she would have more children, but now she is worried she will get pregnant again.

Tennessee has abysmal maternal mortality rates and Zahedi is worried that this will make things worse.

A patient was referred to Zahedi soon after the overturn. She had had two uncomplicated pregnancies. She had her water break at 15 weeks. Without fluid, a baby's lungs will not develop.

Some patients choose to keep their pregnancies and risk their own health to be able to hold their baby for a short time. Others can decide to end their relationship. Zahedi can either help them or not. She doesn't think anyone else should make it for them.

The woman had a C-section scar and her uterus, and Zahedi found a dangerous problem. She would likely lose her uterus due to the severe infections and bleeding that could occur.

Zahedi lived through the grief and despair of the patient who agonized over the choice. The patient decided to end her life because she didn't want to leave her children without a mother.

The night before the procedure, Zahedi didn't sleep. She was concerned for herself and her patient.

All of us risked our lives for two years in the Pandemic. Even though she knows people need her, she isn't excited about taking care of patients when she's no longer welcome.

She doesn't want to leave. She told Akers that she loved her practice.

I don't know

Akers sighed as they hung up. She gets a lot of calls from doctors.

She wants her to make a big deal out of nothing. It's possible that the intent was to shut down abortion clinics. She will fold her new nonprofit and return to defending people who have been charged with other crimes.

She asked if it was just about shutting down clinics and writing a law criminalizing abortion. We are all scared if this was just a scare tactic. These are situations where things happen.

Nancy was working an emergency shift that night.

The gynecologist spoke about the fear she sees in her patients. A person is moving out of state. She was asked if she would have to die if things went bad.

She thinks that practicing medicine has become riskier. She couldn't come up with a word to describe the thought of being charged with a crime. She said it was mind- bending.

A pregnant woman went to the emergency room with signs of internal bleeding. She was pregnant with a ectopic baby.

This was the mind-bending scenario she had described from the stage just hours before, one that might have resulted in a statute against a patient.

The man did not hesitate. She left to go to work.