Physicians for Human Rights (PHR) has submitted an amicus curiae brief before the U.S. Court of Appeals for the Sixth Circuit challenging a purported “abortion trafficking law” which would prohibit physicians from “intentionally recruiting… a pregnant unemancipated minor … for the purpose of … [c]oncealing an act that would constitute a criminal abortion [or] [o]btaining an abortion-inducing drug … regardless of where the abortion is to be procured.”
In the brief filed in Rachel Welty and Aftyn Behn v. Bryant Dunaway et al., PHR argues that the recently enacted law places physicians in an untenable position: comply with the state’s statutory scheme and potentially jeopardize their patients’ health, or follow medical standards and risk substantial civil and criminal penalties.
While the law includes a carve-out for “medical diagnosis or consultation regarding pregnancy care” to a pregnant unemancipated minor, it excludes “performing or attempting to perform an abortion… or arranging for travel for the unemancipated minor to procure an abortion or an abortion-inducing drug.”
“Abortion is health care and can make all the difference in ensuring a pregnant patient’s survival and well-being. Yet there is already pronounced uncertainty and risk for physicians attempting to navigate Tennessee’s narrow exceptions to its strict abortion ban, and this act only risks heightening that uncertainty,” said Payal Shah, JD, PHR, director of research, legal, and advocacy.
“The conditions the act sets forth would further impair physicians’ ability to treat pregnant patients, particularly in emergencies, by contributing to delays in medically appropriate care while seeking legal guidance, or to denial of guidance altogether out of fear of prosecution or legal penalties,” added Shah.
Lead author and PHR Board Chair Gerson Smoger, JD, PhD, said: “The act places physicians in an extremely difficult position, where they risk criminal and civil prosecution if they provide standard-of-care prenatal treatment.”
Ambiguous and poorly defined wording in the act also raises significant concerns, including the unclear concept of “recruiting,” which is never clearly defined and could leave physicians at risk based on patient health choices. As highlighted in PHR’s Amicus Brief, in circumstances where a pregnant patient has a dangerous pre-existing condition, medical best practice would normally require a physician to at minimum discuss or even recommend abortion. In such a case, when the patient is an unemancipated minor, would the physician be guilty of “recruitment” for merely sharing information about lawful out-of-state care that might have the potential for an abortion?
This addition to Tennessee’s already highly restrictive abortion laws, which are among the most prohibitive in the country, would further deepen the uncertainty physicians already face about whether their good-faith medical judgment is legally sufficient to provide care consistent with their training and professional obligations, or whether they risk breaking the law. Additionally, it further reduces physicians’ ability to provide proper prenatal care as both laws only allow abortions when the pregnant patient’s life is at risk, or when there is a threat of permanent injury.
As Justice Ketanji Brown Jackson recognized, citing PHR’s amicus brief in Idaho v. United States, “the same medical condition can present with different risks in different patients.” So, if a condition can cause harm, how long must a physician wait to render proper prenatal treatment?
The situation of the many Tennesseans who routinely seek specialist care in one of the state’s eight neighboring states, often because it is geographically closer, is likewise left unaddressed in the act. As a result, Tennessee physicians would be left without guidance on the legality of recommending out-of-state abortion providers to unemancipated minors, wondering if it constituted “recruitment” even when the care is legal in that state.
PHR’s amicus brief was authored by PHR board chair Gerson H. Smoger; PHR research, legal, and advocacy director Payal K. Shah; PHR legal fellow Kimberly Saltz; and Mary A. Parker of Parker & Crofford in Tennessee.
Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.