NASHVILLE, Tenn. (WKRN) – On Thursday, Tennessee’s full abortion ban will be codified into state law.
However, in the days leading up to the law going into effect, there is still confusion over whether there is an exception in the law for abortions performed to save the mother’s life.

Reporters pressed Governor Bill Lee on this during a media availability Monday.

“Do you think there should be a true exemption that will protect a doctor from being arrested and charged for performing an abortion?” one member of the press asked Gov. Lee.

“I think that what we need is to make sure there is an ability for a doctor to perform in the case of a dangerous maternal health situation that exists for a doctor, and my sense and understanding of the law is that that does exist now,” Gov. Lee answered.

Yet, Professor Wendy Anne Bach from the University of Tennessee Knoxville said the governor is avoiding talking about the language in the law as it’s written.

Beginning Thursday under Tennessee law, “A person who performs or attempts to perform an abortion commits the offense of criminal abortion. Criminal abortion is a Class C felony.”

The punishment for a Class C felony is 3-15 years in prison and a potential fine.

The law does include what’s called an “affirmative defense,” which it adds, “must be proven by a preponderance of the evidence” that the abortion was performed in, “the physician’s good faith medical judgment, based upon the facts known to the physician at the time, that the abortion was necessary 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.”

Bach explained this gives a doctor who performed an abortion with the hope of saving a mother’s life a defense if they are brought to court, but that isn’t at the same level as an exception to the law.

In the scenario that a doctor is being charged with a criminal abortion, Bach says the prosecutors can bring in other medical experts who could say given the same patient they would’ve acted differently.

“So now the burden is on the doctor being charged or the person being charged to prove they had that good faith belief,” Bach said. “And then the prosecution is going to put on other medical experts saying, ‘listen jury, it’s not reasonable for you to conclude that that was done in good faith because I looking at the same facts would’ve not concluded that the life of the mother was in danger.'”

Therefore, the fate of the doctor in this scenario will be left up to the jury.

Reporters pressed Gov. Lee on this point of the law among others Monday. Gov. Lee repeated that this law does protect the life of the mother.

“What is important is that the life of the mother be protected in a situation where the maternal health situation puts her life in danger. That needs to be protected and we want that to be protected and in our law that is protected,” he said before ending the press availability.

Bach says this is not a matter of semantics and language but instead can greatly impact people’s lives.

“The legislature could’ve written this statute an exemption and instead they made it a defense. That matters tremendously in terms of risks to the life of the mother and we should be honest and clear about the laws and its effects in the state,” she said.

Bach also added that she thinks this will have a “chilling” effect on doctors and patients. She fears this will remove trust between a patient and their doctor and that doctors may feel pressured to not act in the best interest of the patient because of fears of legal battles. Gov. Lee said he is currently focused on implementing the law.

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The law also does not include exemptions for abortions that are the result of rape or incest.