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Court hears arguments for dismissal of Tennessee abortion lawsuit and partially blocks ban

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A three-judge panel heard arguments Thursday to dismiss a lawsuit challenging Tennessee's abortion ban and a request to block part of the ban.

The case stems from a lawsuit brought by seven women and two doctors against the state over its abortion bans. The justices are considering a motion to dismiss the lawsuit and a request for an injunction against the ban because it relates to dangerous pregnancy complications.

Tennessee suspended almost all abortion services when an abortion ban went into effect in August 2022 following the U.S. Supreme Court's Roe v. Wade had picked up. The state is one of 14 states to stop almost all abortions.

Performing or attempting an abortion is a Class C felony in the state.

The three-woman panel said it would not make a decision Thursday. A written decision is expected after the case has been reviewed.

In the lawsuit, the women claim they were denied “necessary and potentially life-saving medical care” because doctors “fear the penalties imposed by this ban,” the lawsuit says. The lawsuit also names the Tennessee Attorney General and the State Board of Medical Examiners.

The state argued that the wording of the ban was clear and pushed back against claims that doctors were uncertain about what constituted legal abortion care.

“If a few doctors actually say they are unaware of the serious risk a borderline case could pose, that doesn't mean they are legally vague,” Whitney Hermandorfer, an attorney with the Tennessee attorney general's office, said on Thursday court in response to a question from judges about affidavits filed by doctors in the case.

The state argued that the people who filed the lawsuit are not currently experiencing the medical emergencies or seeking emergency care mentioned in the lawsuit — and therefore have no reason to file the lawsuit since they seek relief in hypothetical future scenarios ask.

“While we all agree that the health circumstances of the past are incredibly regrettable, I submit here that they provide no legal reason to override the medical exception at issue in this case,” Hermandorfer said in court.

A strict law passed last year in Tennessee allows abortions in molar and ectopic pregnancies to eliminate a miscarriage or save the mother's life. The law was passed in response to opposition from doctors and lawyers.

The Trigger Act did not provide an exception, but it did allow for an affirmative defense, which allows doctors prosecuted for performing an abortion to justify their actions by claiming that it was done to cause death or serious injury impede. This clause, which the legislature refers to as an exception, only comes into force in criminal proceedings when a doctor has been charged with the crime and his license has been revoked.

In response to prosecutors' assurances that they would not prosecute certain cases, Chancellor Patricia Head Moskal, a judge in the case, responded that there was no guarantee that the district attorney would not prosecute based on their statements alone, and pointed out that district attorneys do not prosecute, are elected and change regularly.

The state also rejected the claim that the law violates the right to life clause of the state constitution, citing the exception to the ban.

The lawsuit

The lawsuit, filed by the Center for Reproductive Rights, seeks clarification of the medical exception in the abortion ban by explaining when doctors can legally provide abortion care.

The Center for Reproductive Rights urges the court to allow doctors to rely on their “good faith judgment” and consultation with patients when making decisions in cases of medical problems or pregnancy complications that pose a threat to the mother's life; Conditions made worse by pregnancy; Conditions that cannot be effectively treated during pregnancy or require repeated invasive procedures; and in cases of fatal fetal anomalies.

The lawsuit argues that the exception to the abortion ban, as it applies to medical emergencies, violates the Due Process and Equal Protection Clauses of the Tennessee Constitution. It also argues that the law is unconstitutionally vague for doctors who don't know what treatment would satisfy the exceptions.

Despite claims from politicians including Gov. Bill Lee that the ban allows exceptions for pregnancies that could endanger a woman's life or cause serious bodily harm, some doctors told ABC News they believe that is not the case.

The plaintiff's stories

Nicole Blackmon, a 31-year-old living in Tennessee, said she stopped taking medication for high blood pressure and a rare brain disease when she learned she was pregnant in July 2022 to avoid harming her pregnancy.

Fifteen weeks into her pregnancy, Blackmon said she learned her baby had been diagnosed with a fatal condition. Because she said she couldn't afford the thousands of dollars it would cost to travel to another state for abortion care, she was forced to continue her pregnancy despite risks to her health. According to the lawsuit, she gave birth to a stillborn baby.

Allie Phillips, 28, and her husband were celebrating the birth of their second daughter when they received a fatal diagnosis, she told ABC News in October. At 18 weeks of pregnancy, the couple said they were told the fetus had several abnormalities that were incompatible with life. She told ABC News that many of the fetus' organs, including the heart and brain, had not developed properly and her doctor said the fetus' condition would continue to deteriorate and that continuing her pregnancy could pose serious risks to Phillips' health .

Because of Tennessee's ban, Phillips said her doctor told her she couldn't give her advice about accessing abortion care. After doing their own research, the couple made an appointment at an abortion clinic in New York the following week. When she arrived, she said she learned her baby's heart had stopped beating and she was taken to the emergency room because she was at risk of serious blood clots and infections, including sepsis.

Kaitlyn Dulong, who became pregnant in November 2022, was diagnosed with cervical insufficiency and told she would eventually lose her pregnancy. However, she did not receive abortion treatment until 10 days later, when her cervix dilated and she lost all of her amniotic fluid. The fetal body was in the vaginal canal, according to the lawsuit.

Monica Kelly was 12 weeks pregnant when her fetus was diagnosed with trisomy 13, a serious fetal disorder, and was unlikely to survive the birth or die shortly after birth, the lawsuit says. She was also told that another pregnancy would carry the risk of pre-eclampsia and infection. She traveled to Florida for abortion care, the lawsuit says.

Kathryn Archer's fetus was diagnosed at 20 weeks of pregnancy with severe fetal abnormalities, including irregular brain development and maldeveloped organs, and was unlikely to survive birth, the lawsuit says. With support from an abortion fund, she traveled to Washington, D.C., for treatment

Rebecca Milner was 20 weeks pregnant when she suffered a premature rupture of her membranes, making it unlikely she would survive the pregnancy and putting her at risk of a potentially life-threatening infection, the lawsuit says. She traveled to Virginia to have an abortion but still developed an infection that doctors said was due to the delay in treatment, the lawsuit says. When she returned to Tennessee, she needed treatment for sepsis, the lawsuit says.

Rachel Fulton was pregnant when an ultrasound showed inadequate fetal development of the nervous system, lower spine, lungs, abdomen, feet and hands, as well as fluid buildup in tissues and organs, the lawsuit says. She was also at risk of mirror syndrome, a life-threatening complication, so she drove to Illinois with her husband to seek abortion care, according to the lawsuit.

Doctors Heather Maune and Laura Anderson are also plaintiffs in the lawsuit, suing on behalf of themselves and their patients. They demand clarity when it comes to the care of their patients.