Tennessee Law Asks Physicians to Keep Fetuses and Embryos Alive When Performing Abortion to Save Mothers

As you have noticed from reading The Pulse, we have been exploring the United States in terms of abortion and reproductive rights, state by state. Set off by the recent Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Womens Health Organization abortion case this past June, which reversed the Roe v Wade decision of 1973, we have discussed some states that support women’s right to choose. Some of the states in our discussion, such as New York and Connecticut, support strongly the right to choose, while others do not. An example in the latter category that we have discussed is Idaho, where a law prohibiting abortion from six weeks gestation onward went into effect as of August. But at least the new Idaho statute makes exceptions in cases of rape and incest. The same cannot be said about the US state that we’re discussing today, Tennessee, which goes by what is probably the most ironic nickname that we’ll see in this entire series: The Volunteer State.

Due to a new law called the “Human Life Protection Act” (SB 1257), carrying a pregnancy to term and giving birth is no longer voluntary in the Volunteer State, even if that pregnancy is the result of rape or incest, and even if the pregnant individual is a minor. Now, the Tennessee law does allow physicians to proceed with an abortion in order 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. However, the law also commands physicians 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 

You read that correctly. The above is quoted directly from a summary of the new law posted on the website of the government of Tennessee and the law asks doctors to perform the abortion —an abortion for saving the mother’s life— in a way that, if possible, allows the fetus, or embryo, to survive the abortion.

From reading our numerous discussions of abortion here on The Pulse, you probably know that it’s not possible for a fetus or embryo to survive an abortion. Any procedure that terminates a pregnancy in a manner in which the fetus survives is not an abortion. It’s a pre-term delivery and it’s performed well into the third trimester (which begins in week 27) in settings of certain maternal pregnancy complications, such as preeclampsia, that can be cured by ending the pregnancy and that occur late enough in the pregnancy that the fetus is viable, or can be made viable so that it can survive such a pre-term delivery. Now, preterm infants can be born in the second trimester, because of various problems maternal and fetal problems that trigger preterm labor. Survival of birth during weeks 23 and even 22 is becoming more common, but survival is still not very good, because viability is borderline at that point. Over the past four decades, there have been a couple of cases of preemies surviving with a gestational age of just under 22 weeks, and one big reason for the poor viability is that the fetal lungs are not ready to support life.

This reality did not stop SCOTUS from ruling in the Casey versus Planned Parenthood of Southeastern Pennsylvania case of 1992 that the trimester framework of Roe v Wade, should no longer be the guide for when states may prohibit abortion. Under the Roe framework, states could not prohibit women from choosing whether to abort up to 26 weeks gestation, the end of the second trimester, but the Casey decision, replaced that cut-off point with fetal viability. Because of the few examples of preemies surviving birth just beyond the halfway point of pregnancy, anti-abortion states were able to restrict and prohibit abortion at increasingly earlier points in pregnancy from 1992 until the recent Dobbs decision that now gives them the power to prohibit abortion at any point beyond conception.

Now, according to the US Centers for Disease Control and Prevention (CDC) about 92 percent abortions take place no later than gestational week 13, meaning that 92 percent of abortions involve either an embryo (what the developing offspring is called through roughly the end of gestational week 10) or a very early fetus. The CDC also reports that less than one percent of abortions occur after 21 weeks gestation and, by the way, in any state, including pro-choice states, those late abortions tend to be on account of a maternal medical issue, or the discovery that the fetus has serious malformations, rather than the mother deciding that she doesn’t want to have a baby after all.

As we noted above, the number of premature infants born prior to 21 weeks gestation is zero, which raises some questions about the intents of the writers of the Tennessee law requiring physicians to perform abortion in a way that provides the best opportunity for the unborn child to survive. Are the Tennessee state legislators who wrote the law simply very ignorant about pregnancy, birth, and survival of preterm infants? Are they under the false impression that artificial womb technology has advanced to a point that doctors can remove a fetus, or even an embryo, at any gestational age, transfer it to such a device, and keep it alive while it continues its development? Or do they think —or want their constituents to think— that most abortion seekers seek their abortions at 28 weeks or 32 weeks or some similar moment when you could perform an induced delivery, rather than abortion?

David Warmflash
Dr. David Warmflash is a science communicator and physician with a research background in astrobiology and space medicine. He has completed research fellowships at NASA Johnson Space Center, the University of Pennsylvania, and Brandeis University. Since 2002, he has been collaborating with The Planetary Society on experiments helping us to understand the effects of deep space radiation on life forms, and since 2011 has worked nearly full time in medical writing and science journalism. His focus area includes the emergence of new biotechnologies and their impact on biomedicine, public health, and society.

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