By Stephen Elliott, Stateline
With Tennessee’s so-called trigger law already on the books, the state enacted its abortion ban almost immediately after the U.S. Supreme Court struck down Roe v. Wade in June.
Yet even as anti-abortion legislators and advocates celebrated, they considered how much further they could go — perhaps by barring Tennesseans from seeking abortions in other states, or by restricting contraception.
But now, some GOP legislative leaders have returned to Nashville for the new session with a different attitude. Swayed by input from constituents and health care providers — and perhaps by a November poll showing that 75% of Tennesseans believe abortion should be legal in cases of rape and incest — some key Republicans say they want to add exceptions to the law.
“First off, I’m anti-abortion, very strongly, but I’m more pro-life,” said Republican state Sen. Ferrell Haile, a pharmacist who is speaker pro tempore. “There’s a high percentage of folks that think there need to be some tweaks made to this.”
House Speaker Cameron Sexton said an exception for the life of the patient would need “to be very clear.” Under the current law, which makes all abortions a felony, abortion providers must offer an “affirmative defense” if they are charged, admitting they were in violation of the law but had to act to save the patient’s life. Health care providers have protested that they should not be forced to prove their innocence for actions taken during life-or-death situations.
“I think there needs to be a discussion about rape and incest as well,” Sexton said. “Whether or not we can get that, I’m not sure, but there needs to be a discussion.”
The Tennessee Senate leader and governor support the law as written. Tennessee legislative leaders have not released any proposed exception language, but states with rape and incest exceptions typically require patients to prove that an assault occurred. In Utah, for example, a woman who claims her pregnancy was the result of rape or incest must file a police report, though most sexual assaults nationwide go unreported. Mississippi and Idaho also require law enforcement involvement.
Some Republicans in other states with strict abortion bans, including Texas and Wisconsin, also might be interested in adding rape and incest exceptions. But abortion rights supporters point out that few if any patients have qualified for abortions in the states that do have exceptions.
An August poll by the University of Texas showed that 78% of Texans support an exception for incest and 80% favor an exception for rape. GOP House Speaker Dade Phelan said at the Texas Tribune Festival in September that he has heard from House members who are concerned about the absence of exceptions.
At the same event, one of the state’s longest-serving Republican state senators said he would support a rape exception.
“If I get a chance to vote for an exception to rape, I will vote yes,” Texas state Sen. Robert Nichols said on a panel of GOP lawmakers several weeks before he was up for reelection. “I think instead of us telling women what to do, we should show our support for women of this state.” The Texas Right to Life organization suspended its support for Nichols in response to his comments.
Republican Lt. Gov. Dan Patrick, who leads the state Senate, has signaled he might be willing to take up the exceptions question.
“I am not saying no, but we’d have to see a real groundswell of Republicans in the House and Senate to say yes,” Patrick told Spectrum News’ Capital Tonight in a December interview.
Amy O’Donnell, communications director for Texas Alliance for Life, said her organization is “definitely against a rape-incest exception in our abortion laws,” though the group supports exceptions for medical emergencies. O’Donnell added, however, that her organization has not withdrawn support from anti-abortion rights lawmakers who support rape and incest exceptions.
In Wisconsin, some GOP leaders also are interested in adding exceptions to the state’s strict abortion ban, a law dating to 1849 that was reactivated by the U.S. Supreme Court’s decision to overturn Roe. But the situation in Wisconsin is complicated because while Republicans control the legislature, Gov. Tony Evers is a Democrat.
In December, Republican House Speaker Robin Vos told the Associated Press that he favored granting clear exceptions for rape and incest and protecting the life and health of the patient.
“I’m going to work hard to make it happen,” Vos said. “I think it’s the right public policy, and I think it’s where the public is.”
In a September poll, only 5% of likely Wisconsin voters said they favored a law prohibiting all abortions without exception.
But Evers, who supports abortion rights and has sued to overturn the 1849 law, has pledged to veto any piecemeal legislation that leaves the ban in place. And Republican Senate Majority Leader Devin LeMahieu told the Associated Press he doesn’t want the Senate to consider an exceptions bill because he knows Evers will veto it.
“I’m not sure why I would make my caucus go through such a difficult vote if the governor is going to veto it,” LeMahieu said.
Gracie Skogman, legislative director for Wisconsin Right to Life, agreed that given the promise of a veto, an exceptions debate in the Wisconsin legislature could “put pro-life members in the position of having to take a difficult vote.”
Still, she said, her organization supports medical emergency exceptions and “we do think we should have further conversations about potentially strengthening that language.”
Wisconsin Right to Life opposes any rape or incest exceptions, Skogman said, but maintains its support for abortion opponents who support those exceptions.
The question of whether to emulate Evers and stand firm against any ban — whether it has exceptions or not — or to push for exceptions is a thorny one for abortion rights supporters.
“If you’re talking about exceptions, you are preferencing some reasons for an abortion over others, and that doesn’t treat abortion patients fairly,” said Elizabeth Nash of the Guttmacher Institute, which supports abortion rights. “You’re also requiring patients to identify a reason for an abortion when simply saying you need an abortion is all that should be needed.”
Nash noted that exceptions often are crafted so narrowly that people who think they qualify don’t meet the requirements, and that “particularly for rape and incest, it can be very traumatic for the person to have to relive all of that to prove they qualify for exceptions.”
Louisiana’s abortion ban, for example, includes exceptions for protecting the life or health of the patient and for deadly birth defects. But the state has reported no abortions since its ban took effect, according to The New York Times. Mississippi has exceptions for rape and protecting the life of the patient, but there have been no more than two abortions since that state’s ban took effect, the Times reported.
In Tennessee, there were nearly 10,000 abortions in 2019, the last year for which state data has been published, though the rate of procedures was declining even before the Supreme Court struck down Roe. After Tennessee’s ban took effect last year, major providers such as Planned Parenthood stopped offering abortion services in the state.
Abortion rights leaders in Tennessee emphasized that they want to repeal the ban, but said they’d be willing to work with GOP leaders to make it less harmful.
“If they want to walk this back, I hope they would do it in a way that ensures some people can really access the health care they need,” said Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi. “We’re happy to help them with good public policy if they want our perspective.”
Francie Hunt, executive director of Tennessee Advocates for Planned Parenthood, said she was reluctant to talk about proposed exceptions until she could see actual legislative language. But, she said, “there are ways to write an exceptions bill that could be helpful. I’m curious to see if they’re able to write that bill. We’ll be here if people want to consult with us.”
Tennessee state Sen. Raumesh Akbari, the new Democratic leader, said she understands the trepidation around embracing Republican-led conversations about exceptions. But with her caucus controlling just six of 33 seats, and Tennessee House Democrats at a similar disadvantage, she said she will do “whatever we have to do to try and improve the situation.”
“I obviously support putting some exceptions in if that’s all we can get,” Akbari added.
In Tennessee, the same Vanderbilt University poll that found that three-fourths of Tennesseans — and a majority of Republicans — support rape and incest exceptions, also found that more voters now describe themselves as pro-choice than describe themselves as pro-life, a stark shift from a decade ago.
But adding exceptions to the Tennessee ban is far from a slam dunk. Senate Speaker Randy McNally said the abortion ban is fine as is, in contrast to his counterpart in the House. Gov. Bill Lee, also a Republican, has said he supports the law as written.
Meanwhile, Tennessee legislators already have filed bills that would enact further abortion restrictions, including one that would prohibit city governments from helping residents or employees seek abortion care in other states.