Woman denied abortion for unviable birth hits out at ‘appalling and cruel’ attitude of Tennessee lawmakers

A woman challenging Tennessee’s abortion ban after she was denied procedures despite serious medical concerns has told The Independent that the attitude of some legislators was “appalling and cruel”.

On Thursday, lawyers for seven women who were denied abortions and two doctors in Tennessee argued for a temporary block of the ban, as the state’s attorneys tried to dismiss the case altogether.

One of the seven patient plaintiffs, Rebecca Milner, said the day’s proceedings had been “physically and emotionally draining” but she was “proud” to have been part of the legal challenge.

Speaking to The Independent after proceedings were adjourned, Ms Milner said: “The point that was made over and over again, is that the impact [of the ban] is different from the intent… Even if we think about the kind of best intent of protecting life, it did not protect my life.

“They were talking today about innocent foetuses. I love my daughter. And she was very much wanted, but my daughter had no chance of life. So yes, I think it is out of touch, and the impact is different than what the supposed intent is.”

Ms Milner said she had been prompted to take action after hearing one Tennessee legislator describe the horrors and the trauma women are enduring in the state as an “inconvenience”.

“It’s appalling and cruel… if you’re describing, wanting to gloss over what people are experiencing as an inconvenience,” she told The Independent.

“When you’re already in a situation that is overwhelming, and traumatic and devastating, why would you make that harder for people? Why step in and say even though I don’t know you and I don’t know the specifics of your case, I am going to legislate from afar and make this worse for you.”

During Thursday’s proceedings, a three-judge panel heard oral arguments in Blackmon v State of Tennessee from lawyers from the Center for Reproductive Rights, representing the plaintiffs. Lawyers filed a motion on 8 January requesting a temporary injunction on the state’s near-total abortion ban.

They have asked for “clarity” on the medical exceptions to the ban, referring to the seven women who were “denied necessary and potentially life-saving medical care” because doctors are hamstrung by the law’s “vague” language.

The nine plaintiffs are Nicole Blackmon, Allie Phillips, Katy Dulong, Monica Kelly, Kathryn Archer, Rachel Fulton and Ms Milner, and doctors Heather Maune and Laura Andreson.

The court heard harrowing details of several of their individual cases during the hearing for a temporary injunction, including that of a woman – who is not a plaintiff in the case – who was denied an abortion despite her unborn baby being diagnosed with acrania and would have been born without a skull.

Attorney Linda Goldstein said that testimony from a medical professional made clear that the decision to deny the woman an abortion “was because her colleagues were afraid of prosecution under Tennessee’s criminal abortion ban.”

The physicians had not known “whether the risk was high enough, or certain enough,” to allow the abortion, Ms Goldstein said.

The plaintiffs’ attorneys argued that the language of the Tennessee statute on the abortion ban is “unconstitutionally vague” and that the state’s silence on the issue was a “calculated” attempt “to deter care and intimidate physicians.”

Ms Goldstein said that linguistic vagueness means that the exception can result in “multiple or indeterminate meanings.” Interpreting the “ambiguous terms” of the abortion ban exception “and have left the physicians clueless as to what they should do.”

For example, Ms Goldstein said there is no indication of timing for when physicians can perform an emergency procedure that falls within the medical exception.

On Thursday she walked through some of the diagnoses that the seven plaintiffs endured, before asking the court, “Can you perform an abortion when that diagnosis is made? or do you have to wait until the patient is showing signs of physical distress?”

She also argued that the law uses “non-medical language.” Ms Goldstein said this was important because “the only person who can take advantage of the medical exception is the physician,” therefore the language must be comprehensible to physicians.

The plaintiffs’ lawyers suggested using a “good faith medical judgment” for evaluating these risky situations. Ms Goldstein defined this “good faith” standard as physicians not being subject to prosecution if there is medical evidence that supports their judgement.

“If we’re going to send someone to prison for 15 years, they have to know they’re doing something that the statute prohibits. If they’re not acting in good faith, we have that assurance,” she said.

Ms Goldstein added: “The defendant’s silence in the face of a statute that is plainly sowing confusion throughout Tennessee’s medical community, appears calculated to deter care and intimidate physicians.”

Whitney Hermandorfer, the state’s defence lawyer, argued in favour of some vagueness in the law, as the “law is setting a general standard that applies across innumerable scenarios.”

She said, “You can always hypothesize edge-case scenarios.”

On the subject of “vagueness”, Ms Hermandorfer later added: “It does not render a statute vague as a matter of fact, to put in factual evidence and allegations that particular individuals might not understand or have an idiosyncratic reading of the statute.

“[The court] doesn’t have to take as factual truth a motion to dismiss certain misreadings or misunderstandings about what the statute says and have that govern… statutory language is inherently vague.

“Anybody could bring a vagueness challenge if they just went and pulled 10 people on the street and asked, ‘What do you think about this reasonableness standard?’”

The defence team has argued that the case should be dismissed.

Ms Hermandorfer argued that the plaintiffs are seeking an exception “beyond what the law identifies” because five of the patient plaintiffs were denied abortions before the medical exception was in effect.

The defence attorney argued that “there have to be some allegations of risk that she faces that would reasonably bring her within the bounds of needing a medical exception.” However, the plaintiffs have “rare diagnoses” and that this statute “doesn’t come into play very often.”

The lawyer then turned to the physician plaintiffs. On top of this, she also argued that “there is no possibility of prosecution” against the physicians because the district attorneys (DAs) have said they wouldn’t prosecute them.

One of the three judges interjected, “There’s no guarantee that they would not criminally prosecute,” since that the DAs are elected officials. “Just because the DAs say they’re not going to enforce it,” that is not a guarantee.

The defence lawyer argued it’s a “multi-step chain” that goes beyond just the DAs.

To this point, plaintiff attorney Marc Hearron countered that even if the DAs disavowed prosecution against the doctors who perform abortions in violation of the law, their public statements are “not binding.” Similarly, their pledge would only apply to criminal penalties — it wouldn’t apply to the revocation of a medical licence.

Mr Hearron also pointed out that the attorney general has said publicly that he would seek the appointment of a new prosecutor if a DA refuses to bring prosecution.

A decision on the motion to dismiss the case, or grant the temporary injunction, will be made "as soon as we are able," one of the judges said.