Blackmon v. State of Tennessee

On September 11, 2023, the Center for Reproductive Rights filed this lawsuit challenging the application of Tennessee’s criminal abortion ban to pregnant patients with emergent medical conditions. The case was brought on behalf of five plaintiffs: three Tennessee women denied medically necessary abortion care who faced severe and dangerous pregnancy complications, and two Tennessee physicians who have been prevented from offering their patients the medically indicated treatment during obstetrical emergencies.

The lawsuit was filed simultaneously with challenges to similar laws banning abortion in Idaho and Oklahoma. 

Background

Tennessee’s criminal abortion ban first went into effect on August 25, 2022, just weeks after the U.S. Supreme Court eliminated the right to abortion under the federal constitution. When enacted, the total ban did not allow for any exceptions. Instead, it noted only that physicians would have an affirmative defense—with the defendant bearing the burden of proof—if they could establish that they performed an abortion that was necessary to avoid the death of the pregnant person or serious risk of substantial and irreversible impairment of a major bodily function.   

In April 2023, the Tennessee legislature replaced the ban’s affirmative defense provision with the Medical Condition Exception, which created an exception to the ban if a physician determines “using reasonable medical judgment, based upon the facts known to the physician at the time,” that abortion is necessary “to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” It also revised the definition of criminal abortion to allow Tennessee physicians to terminate ectopic or molar pregnancies. 

The Center’s lawsuit argues that the Medical Condition Exception is too narrow and unclear for physicians to provide life-saving care without fear of criminal liability. The lawsuit also seeks to clarify that the Exception allows physicians to provide abortion care in cases of fatal fetal diagnoses.

Case Arguments

The Center’s lawsuit asks the state court to clarify the Medical Condition Exception by issuing a declaration about when physicians can legally provide abortion care in Tennessee.

To this end, the case asks the court to establish that physicians can provide care in their “good faith judgment and in consultation with the pregnant person,” if the pregnant person has:

• a physical medical condition or complication of pregnancy that poses a risk of infection, bleeding, or otherwise makes continuing a pregnancy unsafe for the pregnant person;
• a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or
• a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.

The Center’s lawsuit argues that the abortion ban, as applied to pregnant persons with emergent medical conditions, violates Article I, § 8 and Article XI, § 8 of the Tennessee Constitution, which guarantee substantive due process for state deprivations of life, liberty or property, as well as equal protection under the law. Plaintiffs ask the Court to enjoin unconstitutional enforcement of the ban and to issue a declaration clarifying the Medical Condition Exception under Tennessee’s Declaratory Judgment Act.

Specifically, it argues that:

• The Exception unconstitutionally violates Patient Plaintiffs’ right to life and equal protection under law because it deprives pregnant Tennesseans (and only pregnant Tennesseans) of access to life-saving health care. 
• The vagueness of the Exception unconstitutionally deprives Physician Plaintiffs of their rights to liberty and property because the Exception does not provide them with adequate notice of the prohibited conduct and invites arbitrary enforcement by state officials. The Physician Plaintiffs also sue on behalf of their patients who are denied life-saving care.   

Patient Plaintiffs: Women Denied Care After Experiencing Severe Pregnancy Complications 

>> Read more details of these patients’ stories here.

• Nicole Blackmon, of Nashville, discovered she was pregnant just months after the murder of her teenage son. But at 15 weeks of pregnancy, her baby was diagnosed with a condition that made it unlikely her baby would survive the pregnancy. In addition to suffering from depression and anxiety, Nicole had health conditions that put her at high risk of having a stroke during labor and delivery. Without resources to travel to another state for an abortion, Nicole was forced to continue the pregnancy against her will until, at 31 weeks, she gave birth to a stillborn baby.
• Allie Phillips, of Clarksville, was 18 weeks pregnant with her second daughter when she learned that her baby had multiple fetal diagnoses that made it unlikely her baby would survive the pregnancy, including a congenital condition of the brain. The continuation of the pregnancy posed risks to Allie’s own health. Allie was eventually able to raise the funds to travel to New York City, where she learned her baby had already died in utero, leaving her at a high risk of infection and blood clots. She was able to receive the abortion care she needed in New York.
• Katy Dulong, of Chapel Hill, pregnant with her first child, was diagnosed with cervical insufficiency early in her second trimester and told that she would inevitably lose the pregnancy. Though she asked to receive abortion medication to expel the pregnancy, she was instead sent home. Katy did not receive the abortion care she needed until 10 days later—when her cervix was fully dilated, all amniotic fluid had drained, and most of the fetus’s body was in her vaginal canal. Katy’s doctors told her she was extremely lucky to have survived; without the abortion medication, she could have died within days.

Physician Plaintiffs: OB-GYNs Unable to Provide Life-Saving Patient Care

>> Read more details of these physicians’ stories here.

• Dr. Heather Maune is a board-certified OB-GYN in private practice in Nashville, Tennessee. Since the state’s ban went into effect, Dr. Maune has been forced to delay or refrain from performing abortions in situations where she would previously have been at liberty to perform them, and she believes that the ban impedes her ability to offer her patients the medically indicated treatment in obstetric emergencies.
• Dr. Laura Andreson is a board-certified OB-GYN in private practice in Franklin, Tennessee. Like Dr. Maune, Dr. Andreson has been forced to delay or refrain from performing abortions that she would have been at liberty to perform before Tennessee’s ban went into effect, and she believes that the ban impedes her ability to offer her patients the medically indicated treatment in obstetric emergencies.

Plaintiffs: Nicole Blackmon; Allyson Phillips; Kaitlyn Dulong; Heather Maune, M.D.; and Laura Andreson, M.D.  

Center Attorneys: Linda C. Goldstein, Marc Hearron, Nicolas Kabat, and Jasmine Yunus

Co-Counsel/Cooperating Attorneys: Morrison & Foerster LLP, and Barrett, Johnston, Martin, & Garrison LLC

Legal Documents:

• Complaint, 09.11.23

News on the Case:

• Center Expands Work on Behalf of Patients Denied Abortion Care Despite Grave Pregnancy Complications, 09.12.23

August 25, 2022	Tennessee’s criminal abortion ban takes effect, prohibiting abortion care throughout the state without exception.
April 28, 2023	Tennessee adds the Medical Condition Exception to its total abortion ban. The Exception states that physicians may provide abortion care if they determine it is necessary to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.”
September 11, 2023	The Center files a case in the Chancery Court of Tennessee for the 20th Judicial District challenging the limited scope of the Tennessee ban’s Emergent Medical Condition Exception. The Center also simultaneously files challenges concerning abortion bans in Idaho and Oklahoma.