An OB/GYN Explains Tennessee’s Upcoming Abortion Ban

  • Friday, August 19, 2022

“First do no harm.” Doctors take that oath, and in my opinion lawmakers should too, because they hold tremendous power over people’s lives. There’s no starker example than Tennessee’s abortion ban, set to take effect Aug. 25. 

This ban begins at fertilization. It does not provide an exemption in cases of rape or incest, or even to preserve the life or health of the mother. Instead, doctors can use “life or health” as a legal defense after they’ve been indicted and prosecuted for a class C felony. Thus doctors who perform abortions they deem medically necessary will automatically become potential criminal defendants. Because many doctors will not be willing to put themselves in legal jeopardy, their patients’ health and lives will be at risk.

As a candidate to represent District 26 in the Tennessee House of Representatives, I’ve been talking to people throughout the district about the medical and legal implications of the abortion ban, and it’s obvious to me that most people don’t understand the law. Women tend to react with initial disbelief, just because the potential consequences are so dire. Men generally insist that I’m wrong.

So in the public interest, I interviewed Nikki B. Zite, MD, MPH, a practicing OB/GYN in Tennessee and a professor and the vice chair of education and advocacy for the Department of OB/GYN at the University of Tennessee Graduate School of Medicine. The Chattanoogan has kindly agreed to publish the entire unedited transcript of our interview here. Dr. Zite is not speaking as a representative of UT, and she is not endorsing my campaign. She is simply explaining this law as she understands it, and addressing some of the common questions and comments I’ve heard from people in my district. 

AG: Ireland’s abortion ban was ultimately overturned after a woman died because she couldn’t receive life-saving medical care. Do you think we’ll see the same reaction in Tennessee when the medical dangers of this abortion ban are understood?

NZ: There’s a paper that came out from Texas, because they have been living in this world since September 2021. The paper reported two hospitals’ experience with a very similar situation to what tipped the hat in Ireland, which involved a dentist whose water broke at 17 weeks. She fully knew that the pregnancy was not viable and unable to survive until viability, and she kept asking her doctors to empty her uterus, and they kept saying, “We can’t because there’s a heartbeat,” and ultimately she died. 

So this report from Texas involved 28 women at two hospitals that came in with the same situation. They were less than 22 weeks’ gestation and their water broke, and they were all told that doctors could not intervene until they were sicker or there was no fetal heartbeat. Only one of those 28 pregnancies led to a live birth still living at the time of the publication, and even with that one out of 28, the outcome is still questionable. And 57 percent of the women had increasing morbidity. None of them died, but does a woman have to die for us to actually get some attention or realize these laws are dangerous? Fifty-seven percent had increasing morbidity: intensive care unit stays, transfusions, one ended up with a hysterectomy. So they are seeing worse outcomes because care is being delayed in Texas and this law is still there, maybe worse laws even being proposed there and in other places across the US. So I don’t know what it’s going to take to get people to care.

AG: My goal in interviewing you is to educate people, because it’s clear to me that they don’t understand the real-world effects of this abortion ban.

NZ: The first thing is, this shouldn’t be political. This is a personal healthcare issue, and the fact that it’s become so political and so legislated is what’s creating these problems and the confusion. And honestly I think that the issues that we’re talking about, the unintended consequences of the ban, are the things that most people don’t think are controversial. But they also just think they’re rare, or they don’t impact them. If you’re talking about cases of rape or incest, or cases where there’s a life-limiting anomaly to the fetus, typically we would have been able to give women the option of continuing that pregnancy, both because continuing pregnancy has inherent risks and because we feel like she shouldn’t be required to do that if she’s not going to get to take home a baby. We have some patients who do choose to continue those pregnancies, and I support those patients in making their decisions, and do what I can to support them in maximizing their health and the pregnancy.  But typically we would have allowed women whose fetus has trisomy 13 or 18; anencephaly (no brain); and other skeletal deformities uniformly fatal to make that choice for their family. And that choice has been taken away from them.

AG: Tennessee is one of the few states with an abortion ban that does not include an exception for the life of the mother, yet the ordinary people I speak with keep insisting that it does. Clearly they believe that a doctor can just sign something saying that the abortion was medically necessary to save the patient, and everything will be fine. What I try to explain to them is that doctors who perform lifesaving abortions immediately become potential defendants in a criminal case. They can use the medical argument as their legal defense, but at that point they’ve already been criminally indicted and prosecuted. Is that an accurate summary as you understand it? 

NZ: That is my understanding of the affirmative defense. And our law absolutely has no exceptions, it has only the affirmative defense clause, which allows—after the abortion, which is illegal, because all abortions are illegal—for physicians to then defend themselves with this good-faith medical decision-making belief that the mother’s life or organ systems were at harm.
This requires a preponderance of evidence to be presented to a jury, and the burden is on the physician. This is very different than exceptions, and this will delay care.  

AG: I understand that now we’ll have doctors having to make a legal calculation as well as a medical one, and the risks involved in that. But could you talk about the consequences for the doctor who does decide to do the medically necessary thing, and then is left to defend herself legally? What are the consequences for the doctor, even if she ultimately wins in court? She has to pay her court fees, right? What else?

NZ: I don’t think we’ll know completely until this happens. But it is a class C felony. So being charged with a felony has some automatic implications. We don’t know what it means from a medical licensing perspective. While you’re defending yourself, can you still practice? We don’t know. While you’re defending yourself are you out on bail, and what does that cost? I don’t know. This is something completely new and different, because in our country typically we have an assumption of innocence until proven guilty, and most of the time evidence is gathered, and in the process of gathering evidence, a decision is made whether or not a crime was committed. Here it seems as though the decision was made that a crime was committed before all the evidence was gathered. And the onus on gathering that evidence is going to be on the person that’s being charged. The burden is being placed on the physician. 

AG: How would the indictment be triggered? Would it be someone in the hospital system seeing the medical records go by? 

NZ: We also don’t completely know that. There is paperwork that is required to be completed for some abortion care, so that could be a way that the criminal justice system is made aware. It could be, for lack of a better term, “whistle-blowers”—people who don’t agree with the doctor’s decision to terminate a pregnancy may reach out to the district attorney. So I don’t know that we completely know or understand the mechanisms or processes. These may be better questions for some of the people within the criminal justice system. When I’ve seen them answering questions, or asked, their responses are equally vague. And some of them have commented on how this is not going to be a priority, that doctors who are practicing evidence-based care don’t have to worry.  But when you look at the law and the way the trigger is written, it’s not clear. And whether that was intentional or not, by both the person who wrote the law or the legislature, it’s hard for a physician to know.

AG: My oldest daughter, who is a physician, read the law and said it doesn’t seem to have been written with proper medical input.

NZ: Or not a medical professional who practices evidence-based front-line obstetrics care. I mean, I have heard some physicians make comments like “You never need to perform an abortion to save the life of the mother.” Now in the next breath, they will say, “Treating an ectopic is not an abortion.” Or “Emptying a uterus when a patient’s water breaks at 19 weeks is not an abortion.” Or, what we’ve seen in Ohio and Indiana recently, “Ending a pregnancy in a 10-year-old who got pregnant by rape is not an abortion.” That’s not what the law says and that’s not what the medical literature says. All of those things end a pregnancy, and therefore, based on this trigger law’s definition and everything I’ve learned as a clinician, with the exception of surgery for an ectopic, those are abortions—and care for an ectopic with a heartbeat is not excluded in the trigger ban. 

AG: How common is it for an abortion to be medically necessary to save the life or health of the mother?

NZ: Certainly the ones that are performed later in pregnancy—remember, only about 1 percent of abortions are performed after 20 weeks—most of those are to save the life of the mother or because something is very wrong with the pregnancy itself. Most of those. But then again, it’s up for interpretation. This calls into question things that I never questioned before, where I let it be the decision between the referring doctor, the high-risk OB doctor, the patient and her family. Situations like the patient has a cardiac muscle issue, and in her previous pregnancy that cardiac muscle was damaged, and then she got pregnant again and the experts quote her risk of death in this pregnancy at 20 percent. So is 20 percent high enough of a risk that she should be offered a termination? What if they quoted her a risk of death at 50 percent? Wouldn’t that be high enough? Most people would say yes. But what’s the difference between 20 and 50? If she has three other kids and doesn’t want to take a one-in-five risk of dying from this pregnancy, should she have to? But that is also something that is vague, and something that is up for interpretation.  

AG: One thing that I hear all the time is “Well, I don’t think women should be using abortion as birth control.” Can you respond to that argument as an obstetrician and medical educator? Do you see that happening? 

NZ: I would then ask, if someone believes this is the case, “What is wrong with our access to contraceptive care?” I think your first statement is a rare, rare scenario. For everybody who says to me, “Well pregnancy from rape and incest is rare so we shouldn’t have an exemption for that,” I would say, “Well so is using abortion for birth control.” If truly someone was using abortion as birth control, she would have a very large  number of abortions, because she’s potentially at risk of pregnancy over and over and over again. I don’t think that most people would choose to have that be their only method of contraception. Are they using condoms, and condoms fail? Are they using withdrawal, and withdrawal fails? Are they trying to use something more reliable and some months they just can’t afford it? This is a situation or narrative created by people that don’t believe women can or should be able to control their own fertility. I don’t think they will be able to find examples of women that have had the number of abortions that would be required to use abortion as birth control—in a reproductive life span, that would be double digits. In my career I have seen one patient that has had more than five abortions, and that was a pitiful story.  

AG: So if we’re blaming women for not using birth control, that made me wonder how easy it is to get reliable birth control.

NZ: Unfortunately it is harder than it was when the Affordable Care Act was mandating contraceptive as preventive care without a copay.  There have been numerous court cases weakening access to contraception without a copay, and now many patients don’t have access to the most effective contraceptive options. 

AG: How hard is it to get reliable birth control if you’re underage or you don’t have medical insurance?

NZ: Well, now if you’re underage it is a struggle to find care at a clinic that will provide low-cost care with anonymity. Most teenagers would be covered on their parents’ insurance, but they don’t discuss the need for contraception at home. We’ve lost Planned Parenthood and Knoxville Center for Reproductive Health, which were well-known places that patients of all ages felt that they had anonymity and could get care. We still have some Title X clinics, most within the Department of Health, but people may feel less comfortable or less aware of those options. I think it’s become more challenging. I have patients who have been long-term users of certain methods that will call every month saying, “Okay, I just went to the pharmacy and this was free last month but now it’s $30, or this was free last month but now it’s $80.” And either way that can be cost-prohibitive for somebody. And those are people with insurance. Without insurance, the most reliable options are likely out of reach for most people, certainly most teenagers in Tennessee. Ideally, families have open communication about relationships, sex and contraception.  

AG: So if they don’t have insurance they’re just paying out of pocket, which if you’re 17 years old, I can’t imagine being able to do.

NZ: Right.

AG: Or even 30 years old, depending on whether you can afford that.

NZ: Everybody was supposed to have some kind of healthcare coverage, but that’s not panning out as much as we thought.

AG: Are you hearing about women who want to get their tubes tied and are being turned down because of this new law?

NZ: We are definitely seeing an increased desire for long-term and permanent contraceptive options. The most common reason I hear from patients who come to see us that have been turned away from somebody else is actually that they’re very young or they have no children. If the patient already has children, I find physicians are less likely to hesitate. Now if she has other health conditions that make a surgical procedure riskier, there’s always going to be a risk-benefit assessment. I see patients who clearly should have reliable contraception because of their health condition, but that same health condition makes them not good surgical risks, so we have these methods like the arm implants or the IUD, which actually work just as well as our permanent options, but some patients are just fearful of them. It’s their distrust in the healthcare system, their genuine desire for something permanent, and not understanding that these long-term options could essentially be their permanent option. Yes, every five to seven years they may have to have it exchanged, but again it works just as well as the permanent methods without that surgical risk.

AG: There’s nothing in the new law that says women of childbearing age can’t get permanently sterilized? 

NZ: There is not. Of course there is the federal requirement for Medicaid that if you desire permanent contraception you have to sign papers 30 days in advance, but that’s just one hoop that women have been going through since the seventies.

AG: I’m reading about women with autoimmune conditions not being able to get methotrexate. Is this something that you’re hearing?

NZ: I’m hearing it but only anecdotally. I haven’t talked to a rheumatologist or a dermatologist that legitimately has said they can’t get it for their patients or that they are no longer prescribing because of the fear from this law. Ideally any of their patients that were on these medications should have been required to have reliable contraception already. When patients go on medications that are what we used to call “Pregnancy Class X,” or very dangerous in pregnancy, they would sign something saying that they were using two forms of birth control. That could be the pill and condoms, or an IUD and condoms. Or permanent options were exempt I think. 

Overall, I’ve heard of this as more of a theoretical risk and a fear than legit. And the dose of that medication that would be taken for those indications (autoimmune conditions) would be very different than what we would use for ectopic management. I do think some people are having to jump through more hoops to get methotrexate for an ectopic pregnancy. But again that should not be an issue; that should not be part of this law. People are scared and interpreting this law in erroneous ways when they feel they can’t offer this medication for ectopic pregnancy. 

AG: Yes, that was my question: Is this a matter of doctors or pharmacists either not understanding the law or worrying about breaking the law?

NZ: Or some of them already have this belief system and now they’re just exercising it. The most common thing we see, and I’ve actually heard of this happening in Chattanooga, is a patient who’s suffering a miscarriage and chooses medical management of their miscarriage with misoprostol—that’s a different medication than methotrexate, and it is one of the medications that would be used in a medication abortion. So we have heard of women being declined this medication for either miscarriage management, or if we’re going to put an IUD in a patient and we’ve struggled to open their cervix, we can use this on occasion to help open their cervix before an IUD is placed, and we have heard of patients being declined this medication for that reason at the pharmacy. 

So we need to do a better job of communicating with the pharmacists, and the pharmacists need to do a better job of trusting patients and trusting that physicians would not do something that would be illegal. I genuinely feel like people are so afraid of this law, it’s more that they’re erring on the side of not doing something because it might be illegal than that they’re trying to do something that might be illegal and get away with it. I do think that that’s where people are trying to get some physicians outside OB/GYNs to care about this issue, is with the non-OB/GYN uses of these medications.

I am on the executive board of Tennessee American College of Obstetricians and Gynecologists, and we are advocating for some changes in this law. We are still working on this confusing issue, but most of the things we’re advocating for are along the lines of what I’ve already discussed with you. We would really like to move away from the affirmative defense and actually have some exceptions and exclusions and clarifications within the law. We would like for rape and incest to be added as part of those exceptions. Life-limiting anomalies and anomalies not compatible with life would be added, and then clarifying  maternal risk, so that physicians can practice good evidence-based healthcare. When you look at most polls, these things align with how the majority of the population feels. We don’t want patient care delayed due to the fear of criminalization, and we don’t want to move away from the standard of health care due to legislation that is poorly understood.  

Allison Gorman
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