Medical Emergency Exceptions to State Abortion Bans
Blackmon v. State of Tennessee
This case challenges Tennessee’s total abortion ban as applied to pregnant people with emergent medical conditions.
Case update: A ruling in this case October 17 temporarily blocked Tennessee’s abortion ban, allowing doctors to treat patients facing dangerous pregnancy complications. Read more.
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. (Four additional women denied abortion care joined the case in January 2024, bringing the total number of plaintiffs to nine.)
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.
“Even before imposing its strict abortion ban, Tennessee had a poor track record on maternal mortality, particularly for persons of color. Now, after enacting one of the toughest bans in the country, the situation can only get worse because Tennessee’s doctors are afraid of providing their patients with the full range of care that they need.”
— Linda Goldstein, Senior Counsel, Center for Reproductive Rights
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;
- Physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or
- 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.
About the Plaintiffs
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.
- Monica Kelly, of northern Tennessee, was 12 weeks pregnant with her second child when her doctor told her that her pregnancy had Trisomy 13, a severe fetal condition, and was unlikely to survive to birth or would die shortly after birth. Monica’s doctor warned her that continuing the pregnancy would put her at risk for preeclampsia and infection, among other conditions. Monica traveled to Florida to receive the abortion care she needed, in part through the help of family and a trusted OB-GYN in the state. Monica is now pregnant again and due in June.
- Kathryn Archer, of Nashville, was 20 weeks pregnant with her second daughter when she learned that several severe fetal conditions, including irregular brain development and improperly developed organs, made it unlikely that her pregnancy would survive to birth. After struggling to find an appointment out of state, Kathryn was able to obtain abortion care in Washington, D.C. She was only able to afford the significant travel expenses with assistance from an abortion fund, friends and family, and a supportive church. Kathryn is now pregnant again and due in May.
- Rebecca Milner, of eastern Tennessee, was 20 weeks pregnant with her first child when she was learned she had suffered pre-term premature rupture of membranes (PPROM) and her baby was unlikely to survive. Continuing the pregnancy also put Rebecca at risk of potentially life-threatening infection. She was able to travel with her husband to Virginia to obtain the abortion she needed. However, Rebecca still developed an infection that doctors said resulted from the delay in abortion care and needed emergency treatment for sepsis when she returned to Tennessee. While Rebecca still wishes to have a child, she fears being pregnant again in Tennessee.
- Rachel Fulton, of Knoxville, was pregnant with her second son when an ultrasound showed inadequate fetal development of the nervous system, lower spine, lungs, abdomen, feet, and hands, as well as fluid buildup in tissues and organs. The pregnancy was unlikely to survive to birth or long past birth, and continuing the pregnancy put Rachel at risk of developing mirror syndrome, a life-threatening complication. Rachel’s grandmother had died in childbirth, a tragedy that had a lifelong effect on Rachel’s father and his siblings. To safeguard her health and spare her family from such tragedy, she drove with her husband to Illinois to obtain abortion care. Rachel would like to have more children but fears being pregnant again in Tennessee after her traumatic experience.
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.
Case Details
Plaintiffs: Nicole Blackmon; Allyson Phillips; Kaitlyn Dulong; Heather Maune, M.D.; Laura Andreson, M.D.; Monica Kelly; Kathryn Archer; Rebecca Milner; and Rachel Fulton
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
- Preliminary Injunction Order, 10.17.24
- Denial of State’s Motion to Dismiss, 10.17.24
- Motion for Temporary Injunction, 01.08.24
- Amended Complaint, 01.08.24
- Complaint, 09.11.23
News on the Case
- Ruling Temporarily Blocking Tennessee’s Abortion Ban Means Doctors Can Treat Patients Facing Dangerous Pregnancy Complications, 10.18.24
- Press release: Tennessee Court Says Some Women Denied Abortions Should Have Received Them Under Law, 10.18.24
- Tennessee Medical Exceptions Case Hearing Scheduled for April 4, 03.28.24
- More Women Denied Abortion Care Join Center’s Case Against Tennessee, 01.08.24
- Press release: State of Tennessee Attempts to Dismiss Case Filed by Women Denied Abortions in Dangerous Situations, 11.02.23
- Center Expands Work on Behalf of Patients Denied Abortion Care Despite Grave Pregnancy Complications, 09.12.23
Media Highlights
- “My State’s Cruel Abortion Laws Made Pregnancy Terrifying,” Scary Mommy, 05.10.24
- View media highlights of the April 4 hearing here.
Timeline:
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. |
November 01, 2023 | The State of Tennessee files a motion attempting to dismiss the case. |
January 08, 2024 | The Center files an amended complaint adding four more plaintiffs and asks the court for a temporary injunction, which would immediately block Tennessee’s abortion ban as it applies to dangerous pregnancy complications. |
April 04, 2024 | Hearing held at the Tennessee Twelfth Judicial District Court. |
October 17, 2024 | Court ruling temporarily blocks Tennessee’s abortion ban, allowing doctors to treat patients facing dangerous pregnancy complications. |