Restrictions

On August 25, 2022, Tennessee began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy with limited medical emergency exceptions,^[1]Tenn. Code Ann. § 39-15-213 (stating that the ban will take effect thirty days after “the issuance of the judgment…of the United States Supreme Court” which took place on July 28, 2022); … Continue reading following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019). However, in October 2024, a Davidson County Trial Court temporarily enjoined disciplinary actions against physicians who provide abortion care within the scope of the trigger ban’s Medical Necessity Exception.^[3]Blackmon v. Tennessee, No. 23-1196-IV(I) (Tenn. Ch. Oct. 14, 2024).

Tennessee has not repealed other laws related to abortion. Tennessee law retains gestational bans at six-weeks,^[4]Tenn. Code Ann. §§ 39-15-216; Memphis Ctr. for Reprod. Health v. Slatery, No. 20-5969 (6th Cir. Jun. 28, 2022) (order lifting preliminary injunction). twenty weeks LMP, and after viability.^[5]TENN. CODE ANN. §§ 39-15-212, 39-15-211(b)(1)–(2).  It also prohibits D&X procedures^[6]TENN. CODE ANN. § 39-15-209. and abortions sought for reasons of sex, race, or Down syndrome, a provision that a Sixth Circuit panel allowed to go into effect.^[7] Id. § 39-15-217; Memphis Ctr. for Reprod. Health, 2020 WL 4274198 at *16-*18; Stay Order at 4-5, Memphis Ctr. for Reprod. Health v. Slatery, No. 20-5969 (6th Cir. Nov. 20, 2020), ECF No. 33-2. Tennessee law continues to include requirements that pregnant people must undergo a mandatory forty-eight-hour waiting period, a requirement that was reinstated by the Sixth Circuit^[8]Id. § 39-15-202(d)(1); Adams & Boyle, P.C. v. Slatery, 494 F. Supp. 3d 488, 570 (M.D. Tenn. 2020) (permanently enjoining the waiting period); Bristol Reg’l Women’s Ctr. v. Slatery, … Continue reading; biased counseling; an ultrasound^[9]Id. §§ 39-15-202(b), 39-15-213(b)(3).; and prohibitions on public funding^[10]Id. § 9-4-5116., and private insurance coverage.^[11]Id. § 56-26-134. The state prohibits local governments from expending funds to assist someone in accessing abortion, specifically targeting funding for out-of-state travel.^[12]S.B. 600, 2023 Leg., Reg. Sess. (Tenn. 2023). It continues to require that a parent, legal guardian,^[13]Id. § 37-10-303. or judge^[14]Id. §§ 37-10-303(b),304. consent to a minor’s abortion. In 2024, Tennessee enacted a law that criminalizes assistance to a minor who leaves the state to access abortion care^[15]S.B. 1971, 2024 Leg. Reg. Sess. (Tenn 2024)., which is currently enjoined.^[16]Welty v. Dunaway, No. 3:24-CV-00768 (M.D. Tenn. Sept. 20, 2024) (granting motion for temporary restraining order and preliminary injunction).

In 2020, Tennessee exploited the COVID-19 pandemic in an attempt to ban abortion care, issuing an executive order^[17]Governor Lee, Executive Order 25 (Apr. 8, 2020). that purported to suspend procedures deemed “elective and non-urgent” by the state. This order contradicted major medical groups in the United States and around the world, which agree that abortion is essential and time sensitive health care.^[18]See Joint Statement on Abortion Access During the COVID-19 Outbreak, Am. Coll. Obstetrics & Gynecology (Mar. 18, 2020); Disaster Risk Management for Health, Sexual and Reproductive Health, World … Continue reading The Middle District of Tennessee enjoined the order, which was upheld by the Sixth Circuit, but it was later vacated by the Supreme Court of the United States and remanded to be dismissed as moot now that the state’s executive order has expired.^[19]Adams & Boyle, P.C. v. Slatery, No. 3:15-CV-00705, 2020 WL 1905147 (M.D. Tenn. Apr. 17, 2020), aff’d by 956 F.3d 913, 922 (6th Cir. 2020), vacated by 141 S. Ct. 1262 (2021) (mem).

Tennessee retains targeted regulation of abortion providers (TRAP) laws related to facilities and admitting privileges,^[20]TENN. CODE ANN. §§ 68-11-201(3), 39-15-202(j); Bristol Reg’l Women’s Ctr. v. Slatery, 7 F.4th 478, 2021 WL 3412741 (6th Cir. 2021). which are both permanently enjoined,^[21]Adams & Boyle v. Slatery, No. 3:15-CV-00705 (M.D. Tenn. Apr. 13, 2017) (granting partial judgment on consent of parties). and reporting.^[22]TENN. CODE ANN. §§ 39-15-203, 68-3-505. Tennessee law continues to restrict the provision of abortion care to licensed physicians and explicitly prohibits physician assistants from providing medication abortion.^[23]Id. § 39-15-201(c)(1)-(2), TENN. COMP. R. & REGS. 1130-01-.21(3); Id. § 39-15-201(c)(1)-(2), Tenn. Comp. R. & Regs. 1130-01-.21(3); Tennessee Abortion-Inducing Drug Risk Protocol Act., Pub. … Continue reading Tennessee also restricts providers from using telemedicine for the provision of abortion care.^[24]TENN. CODE ANN. § 63-6-241. Providers who violate Tennessee’s abortion restrictions may face civil and criminal penalties.^[25]See TENN. CODE ANN. § 39-15-202, id. § 39-15-213.

State Protections

Tennessee law does not include express constitutional protections for abortion. To the contrary, Tennessee’s constitution was amended in 2014 to preclude protections for abortion rights.^[26]TENN. CONST. art. I, § 36 (superseding Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 4 (Tenn. 2000) (holding “a woman’s right to terminate her pregnancy is a vital part of … Continue reading

Post-Roe Prohibitions

In 2019, Tennessee enacted a trigger ban. ^[27]TENN. CODE ANN. § 39-15-213. See also Tenn. Code Ann. §63-6-1101 et seq.

Tennessee repealed its pre-Roe ban in 1973.^[28]Id. §§ 39-301, 39-302 (1956), repealed by 1973 Tenn. Pub. Acts 901 et seq., ch. 235, §§ 1, 3.

Conclusion

Now that the Supreme Court has overturned Roe, Tennessee is enforcing its trigger ban, which criminalizes abortion.