What 'Live Action' gets wrong about Tennessee's abortion ban

Tennessee has one of the most strict abortion bans in the country, the Human Life Protection Act, outlawing abortion at fertilization - before a pregnancy has even begun. Because the law has no exceptions, not even to save the life of the mother, the law has drawn sharp criticism since taking effect on August 25, 2022. At least two Tennessee women have had to leave the state- one by ambulance - in order to receive medically-indicated abortions. Others have been forced to wait until their fallopian tubes ruptured before receiving treatment for ectopic pregnancies. Hence, it is no surprise then that both Democrats and Republicans in the state have expressed a desire to amend the law to include a clear exception for life-preserving medical care.

However, in the wake of such calls to amend Tennessee’s law, multiple anti-abortion organizations have condemned any effort to alter the law. One such organization is Live Action, which published an error-laden post attacking efforts to amend Tennessee’s Human Life Protection Act. Live Action's post, "Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy — but is it?" contains eight falsehoods.

Falsehood #1: 

Twice, Live Action incorrectly defines induced abortion: (1) "Induced abortion involves the intentional killing of a child…" and (2) "Induced abortion is the intentional taking of a preborn life" [1]. 

The actual definition of the term "abortion" is the ending of a pregnancy before fetal viability [2] [3] [4], though "some medical dictionaries mention 20 weeks' gestation or 500 g as the limit" [5]. The actual definition of "induced abortion" is "ending a pregnancy with medication or a medical procedure” [6] — this includes inducing labor [7]. As Kaiser Health explains, "Induction abortion is ending a pregnancy by using medicines to start (induce) labor and delivery," a method sometimes "done because of a severe medical problem" [8]. When labor-induction abortion involves the delivery of a living fetus, fetal demise is almost always inevitable due to fetal inviability [9].

Importantly, Tennessee’s law does not use Live Action's nonstandard definition of abortion, but instead the law more closely adheres to the official definition of abortion [10]: 

"'Abortion' means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant…" (emphasis mine). 

(Terminate means "to end" [11].)

In writing a post about Tennessee’s abortion law, Live Action should have provided the accurate definition of abortion found in the law under discussion. 

Falsehood #2:

Live Action claims "an induced abortion and a treatment for ectopic pregnancy are not the same." However, treatment for ectopic pregnancies, which are always non-viable, is in fact "ending a pregnancy with medication or a medical procedure" [12]. This includes either an injection of methotrexate or a surgical procedure. In other words, it is an induced abortion. 

This is especially true given the Tennessee statute's definition of pregnancy [13]: 

"'Pregnant' means the human female reproductive condition of having a living unborn child within her body" (emphasis mine). 

No where does Tennessee’s statute define pregnancy as being strictly intrauterine, and as such the state's definition includes ectopic pregnancies. 

Again, Live Action never provided its readers with this information. 

Falsehood #3:

The Live Action shared a quote from state Senator Richard Briggs, a physician with a 100% pro-life rating who has been urging his fellow lawmakers to amend Tennessee's law. Sen. Briggs' stated, "About 1 in 50 to 1 in 100 pregnancies will be tubal pregnancies that can rupture, and that’s one of the leading causes of death in pregnant women: is a ruptured ectopic pregnancy. But if a doctor in emergency circumstances — under the present law, if he operated on a woman with a ruptured ectopic pregnancy, he’s committed a crime; he’s a felon” [14].

Live Action called this statement by Sen. Briggs "false": "This is false. Tennessee already permits abortion in life-threatening situations" [15]. But it is Live Action's assertion that is false, not Senator Briggs. 

Yarnell Beatty, senior vice president and general counsel for the Tennessee Medical Association has explained, “Any time a physician performs a pregnancy termination for, say, an ectopic pregnancy to save mom’s life, they’re technically committing a felony” [16]. This is because Tennessee’s law makes all abortions a felony. As Tennessee attorney Chloe Akers explains, “The law criminalizes all termination, without exception, without making any attempt to differentiate between an elective termination and a medically necessary one" (emphasis mine) [17].

The reality of Tennessee’s statute is incongruous with Live Action's claims.

Falsehood #4:

Again, Live Action falsely asserts that the Tennessee law "permits abortion in cases where the mother’s life is at risk" [18]. In support of their claim, Live Action notes that the Tennessee statute contains an “affirmative defense." 

Section 2 (c) of the Human Life Protection Act states [19]: "lt is an affirmative defense to prosecution… which must be proven by a preponderance of the evidence, that… The physician determined, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was 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…" (emphasis mine).

But this is not an exception to felony abortion under Tennessee’s law, nor does the affirmative defense "permit abortion in cases where the mother’s life is at risk,” as Live Action claims [20].

Rather, an affirmative defense means that any physician who performs an abortion (who ends a pregnancy) "commits the felony offense of criminal abortion. That applies even in cases involving saving the life of a mother”, but that doctors will be permitted to defend themselves in court after the fact [21].

Tennessee's statute permits doctors to mount a defense in a court of law "after an arrest has been made and charges filed” [22]. But instead of the onus being on the state to prove guilt, Tennessee’s "affirmative defense" mandates that doctors be presumed guilty of the felony of criminal abortion. 

Every physician that is “charged under the law would have to mount an ‘affirmative’ defense, meaning they would have to hire an attorney to present a fact or facts to counter any allegations by prosecutors," [23] along with prosecutors' own witnesses, who charge the doctor of having "acted illegally" in performing the abortion - all this as the doctor is actively being prosecuted in a court of law. To sum up, physicians must prove, during their own prosecution, that they were justified in committing the felony of criminal abortion because they committed the felony in order to save the mother's life. 

Falsehood #5: 

To bolster the erroneous claim that Tennessee’s Human Life Protection Act allows for life-preserving abortions, Live Action splices together Section 2 subsections (c) and (d), giving the reader the false impression that subsection (d) is related to and reinforces subsection (c). Here is the spliced together quote from Live Action [24]:

[t]he physician determined, in the physician’s good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was 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.

… Medical treatment provided to the pregnant woman by a licensed physician which results in the accidental death of or unintentional injury to or death of the unborn child shall not be a violation of this section.

The first paragraph quoted is from Section 2(c), which outlines the affirmative defense and reads in full [25]:

(c) lt is an affirmative defense to prosecution under subsection (b), which must be proven by a preponderance of the evidence, that:

(1) The abortion was performed or attempted by a licensed physician;

(2) The physician determined, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was 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. No abortion shall be deemed authorized under this subdivision (c)(2) if performed on the basis of a claim or a diagnosis that the woman will engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function or for any reason relating to her mental health; and

(3) The physician performs or attempts to perform the abortion in the manner which, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, provides the best opportunity for the unborn child to survive, unless in the physician's good faith medical judgment, termination of the pregnancy in that manner would pose a greater risk of the death of the pregnant woman or substantial and irreversible impairment of a major bodily function. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct that would result in her death or substantial and irreversible impairment of a major bodily function or for any reason relating to her mental health.

The second paragraph in Live Action's spliced together quote is Section 2(d), which does not deal with the affirmative defense or life-saving abortions. Instead, Section 2(d) addresses medical treatment that does not involve ending a pregnancy, but instead addresses maternal medical treatment which might accidentally result in fetal demise. This subsection reads in full [26]:

(d) Medical treatment provided to the pregnant woman by a licensed physician which results in the accidental death of or unintentional injury to or death of the unborn child shall not be a violation of this section.

Section 2(c) and Section 2(d) address two entirely separate subjects and should not be spliced together to falsely claim that Tennessee’s law "permits abortion in cases where the mother’s life is at risk." Especially as neither subsection validates Live Action's claim.

Falsehood #6: 

Live Action then alleges, "If a child’s death is the unintentional result of an early delivery… this is not deliberate and is therefore not an induced abortion, in which a dead child is the intended result" [27]. Here yet again, Live Action deviates from the established definition of abortion and the goals of such procedures. 

Firstly, despite Live Action's insistence otherwise, the "intended result" of an induced abortion is to end a pregnancy - to empty the uterus (or fallopian tube). 

Secondly, not all methods of induced abortion result in fetal demise. In fact, Live Action's own statement mentions one method which often specifically seeks to avoid fetal demise. - Live Action just doesn't call that method of abortion an "abortion."

Ending a pregnancy is an abortion, and contrary to Live Action's statement, this includes the induction of labor and delivery prior to fetal viability. The medical term for this type of induced abortion is "induction abortion." 

Non-feticidal induction abortion is often used in cases "when termination of a desired pregnancy is necessary for maternal indications” [28]. Because inducing labor and delivery prior to fetal viability ends a pregnancy, it is medically classified as abortion. And tragically, against all hopes, when labor-induction abortion involves the delivery of a living fetus, fetal demise is nearly always inevitable due to fetal inviability. Nevertheless, the hope is that the fetus will survive.

Live Action's employment of a heterodox definition of abortion, along with advancing the faulty notion that some abortions are not abortions, is not merely dishonest; doing so demonstrates a lack of respect for Live Action's readers by misleading them. 

Moreover, Live Action's attestations fail to disprove the established fact that Tennessee’s Human Life Protection Act criminalizes all terminations of pregnancy, "even in cases involving saving the life of a mother” [29].

Falsehood #7:

Although Live Action's post is dedicated to convincing its readers that Tennessee’s law "permits abortion in life-threatening situations," Live Action duplicitously insists that abortion "is not medically necessary to protect the life of the mother" and "is never medically necessary" [30].

This is verifiably false. 

"Pregnancy complications such as placental abruption, bleeding from placenta previa, preeclampsia or eclampsia, chorioamnionitis, and cardiac or renal conditions may be so severe that an abortion is the only measure to preserve a patient’s health or save their life” [31].

"Treatment for ectopic pregnancy [also] requires ending a nonviable pregnancy,” and any “legislation that bans abortion care for those with an ectopic pregnancy or mandates how clinicians treat ectopic pregnancies does not reflect the clinical reality of ectopic pregnancy management and could result in delays or even denials of care” [32].

Even the pro-life doctor, Jeffrey Wright, who was quoted in Live Action's post has stated, "As a Maternal Fetal Medicine physician, I occasionally recommend that a pregnancy be terminated in order to protect the mother’s physical health." 

Live Action does not include this quote, even though it comes from the same document that Live Action does quote from in their post.

Falsehood #8:

Live Action uses the words of Dr. Jeffrey Wright (mentioned above) to support their claim that Tennessee’s law allows abortions to save the mother's life. However, Live Action fails to disclose that the source material does not address Tennessee’s law.

In the source article written by Dr. Wright, he notes that he is writing in reference to Texas's H.B. No. 1280 and other state laws that are akin to it — Tennessee’s law is not. Dr. Wright is also careful to note that he is not offering legal advice. He states:

     It is important to understand that medical diagnosis, and furthermore prognosis, is imprecise. Estimations of level of risk to a mother’s life or her bodily function vary between physicians. Patients and physicians have a range of views regarding how much risk is acceptable. Two physicians may see the same patient and arrive at different diagnoses and then recommend substantially different treatments. On the other hand, the enforcement of a legal statute requires certainty beyond a reasonable doubt. 

     For example, Texas H.B. No. 1280 allows abortion for life -threatening physical conditions aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced. What conditions might meet that standard? 

     The reader should understand that I am not purporting to offer legal advice. I am offering the perspective of a prolife physician who has practiced Maternal Fetal Medicine for over three decades. I am considering what this law says and then suggesting which conditions might meet that standard.

Live Action neither quotes nor mentions any of this. 

Live Action’s post about Tennessee’s Human Life Protection Act is misleading and contains numerous falsehoods. If Live Action wishes to be in the business of informing its readers about state abortion laws and regulations, and if it wishes to be considered a source of accurate, credible information, the organization and its writers would do well to: (1) use correct vocabulary and definitions in discussing abortion; (2) use correct vocabulary and definitions from the law(s) being discussed; (3) adequately represent the contents of law(s) at hand; (4) refrain from splicing together unrelated subsections of law; (5) present truthful, verified information about the medical necessity of abortion, as well as maternal conditions; and (6) restrict quoting sources that do not address the law(s) at hand. 

Otherwise, Live Action establishes itself as merely another source of propaganda, among many. 

Citations:

[1]  Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[2] “Chapter 11: First- and Second-Trimester Pregnancy Loss.” AccessMedicine, https://accessmedicine.mhmedical.com/content.aspx?sectionid=263815963&bookid=2977#263816185.

[3] “Abortion: Taber's Medical Dictionary.” Abortion | Taber's Medical Dictionary, https://www.tabers.com/tabersonline/view/Tabers-Dictionary/766365/all/abortion. 

[4] Grimes, David A., and Gretchen Stuart. “Abortion Jabberwocky: The Need for Better Terminology.” Contraception, Elsevier, 21 Oct. 2009, https://www.contraceptionjournal.org/article/S0010-7824%2809%2900415-6/fulltext. 

[5] Ibid. 4

[6] “Abortion Care.” ACOG, https://www.acog.org/womens-health/faqs/induced-abortion.

[7] Casey, Frances E. “Induced Abortion - Gynecology and Obstetrics.” Merck Manuals Professional Edition, Merck Manuals, 14 Dec. 2022, https://www.merckmanuals.com/professional/gynecology-and-obstetrics/family-planning/induced-abortion. 

[8] “Induction Abortion.” Induction Abortion | Kaiser Permanente, https://healthy.kaiserpermanente.org/health-wellness/health-encyclopedia/he.induction-abortion.tw2562.

[9] Borgatta, Lynn, and Nathalie Kapp. “Labor Induction Abortion in the Second Trimester.” Contraception, Elsevier, 31 Mar. 2011, https://www.contraceptionjournal.org/article/S0010-7824(11)00057-6/fulltext. 

[10] Human Life Protection Act (Tennessee). https://publications.tnsosfiles.com/acts/111/pub/pc0351.pdf

[11] Terminate. Oxford Advanced Learner's Dictionary at OxfordLearnersDictionaries.com. (n.d.). Retrieved January 25, 2023, from https://www.oxfordlearnersdictionaries.com/us/definition/english/terminate#:~:text=%5Bintransitive%2C%20transitive%5D%20to%20end%3B%20to%20make%20something%20end 

[12] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[13] Human Life Protection Act (Tennessee). https://publications.tnsosfiles.com/acts/111/pub/pc0351.pdf

[14] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[15] Ibid. 14

[16] MESSERLY, M., & OLLSTEIN, A. M. (2023, January 21). In conservative states, abortion opponents push back on Republicans. POLITICO. Retrieved January 25, 2023, from https://www.politico.com/news/2023/01/21/abortion-opponents-republican-lawmakers-00078841 

[17] WBIR Channel 10. (2022). Tennessee's abortion trigger law is set to start soon. YouTube. Retrieved January 25, 2023, from https://youtu.be/szOztPO6INg. 

[18] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[19] Human Life Protection Act (Tennessee). https://publications.tnsosfiles.com/acts/111/pub/pc0351.pdf

[20] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[21] Sher, A. (2022, July 3). Critics: Tennessee abortion law could spur criminal charges against doctors even if performed to save mother's life: Chattanooga Times Free Press. Times Free Press. Retrieved January 25, 2023, from https://www.timesfreepress.com/news/2022/jul/03/critics-tennessee-abortilaw-could-spur-crimin/ 

[22] Brown, M., & Timms, M. (2022, July 27). Tennessee's abortion ban to take effect Aug. 25. The Tennessean. Retrieved January 25, 2023, from https://www.tennessean.com/story/news/2022/07/26/tennessee-abortion-trigger-law-ban-2022-expected-august/10061093002/ 

[23] Sher, A. (2022, July 3). Critics: Tennessee abortion law could spur criminal charges against doctors even if performed to save mother's life: Chattanooga Times Free Press. Times Free Press. Retrieved January 25, 2023, from https://www.timesfreepress.com/news/2022/jul/03/critics-tennessee-abortilaw-could-spur-crimin/ 

[24] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[25] Human Life Protection Act (Tennessee). https://publications.tnsosfiles.com/acts/111/pub/pc0351.pdf

[26] Ibid. 25

[27] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[28] Borgatta, Lynn, and Nathalie Kapp. “Labor Induction Abortion in the Second Trimester.” Contraception, Elsevier, 31 Mar. 2011, https://www.contraceptionjournal.org/article/S0010-7824(11)00057-6/fulltext. 

[29] Sher, A. (2022, July 3). Critics: Tennessee abortion law could spur criminal charges against doctors even if performed to save mother's life: Chattanooga Times Free Press. Times Free Press. Retrieved January 25, 2023, from https://www.timesfreepress.com/news/2022/jul/03/critics-tennessee-abortilaw-could-spur-crimin/ 

[30] Fiano-Chesser  (2022, December 21). Tennessee lawmaker claims abortion is needed to treat ectopic pregnancy -- but is it? Live Action News. Retrieved January 25, 2023, from https://www.liveaction.org/news/tennessee-lawmaker-abortion-needed-ectopic-pregnancy/ 

[31] Increasing access to abortion. ACOG. (n.d.). Retrieved January 25, 2023, from https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2020/12/increasing-access-to-abortion 

[32] Understanding ectopic pregnancy. ACOG. (n.d.). Retrieved January 25, 2023, from https://www.acog.org/advocacy/facts-are-important/understanding-ectopic-pregnancy