by Kavitha Surana, Tennessee Lookout
When state Sen. Richard Briggs voted “yes” on Tennessee’s total abortion ban, he never thought it would actually go into effect.
It was 2019, and Roe v. Wade was the law of the land. His vote seemed like a political statement, not a decision that would soon impact people’s lives.
But on Aug. 25, the ban, one of the strictest in the country, kicked in. It contains no explicit exceptions for circumstances under which the procedure would be allowed. Any doctor who performs an abortion in Tennessee faces a felony that carries penalties of up to 15 years in prison and fines of up to $10,000.
Republican state leaders have repeatedly said the law has enough protections for doctors who provide “medically necessary care to pregnant women,” referring to a narrow clause that allows doctors to defend themselves from charges by proving an abortion was necessary to prevent death. But already, some women have made costly rushes across state lines to end nonviable pregnancies or to seek high-risk care that Tennessee doctors weren’t sure they could legally provide.
Faced with the law’s real-world implications, Briggs and a handful of his fellow Republicans have made statements floating the idea that they will “clean up” or “clarify” the ban when the next legislative session begins in January.
Briggs, who won reelection last week, told voters he would like to see the law offer clear exceptions for rape, incest, severe fetal anomalies and cases where the pregnant patient’s life or health are at risk.
But any willingness from lawmakers to consider making changes to the ban provokes intense pushback from national anti-abortion lobbyists.
A Tennessee lawmaker on the call suggested health data could be mined to track and investigate doctors, to make sure the abortions they provided to save patients’ lives were truly necessary.
On Oct. 27, the Tennessee affiliate of National Right to Life held a webinar to encourage GOP legislators to hold the line. The anti-abortion organization helped write and lobby for so-called trigger bans — laws that outlawed abortion in anticipation of Roe being overturned — in Republican-majority statehouses across the country.
ProPublica reviewed a recording of the call. It provides the clearest examples yet of the strategy that the law’s architects are pursuing to influence legislators and the public amid growing national concerns that abortion bans endanger women’s health care and lives.
During the hourlong meeting, representatives of Tennessee Right to Life and Susan B. Anthony Pro-Life America urged the legislators to stay the course and protect the nation’s “strongest” abortion ban as it stands.
They said they see Tennessee’s ban, with its tiny carve-out for life-saving procedures and steep penalties for doctors, as the best example of a law that protects every potential life — even when it means pregnant patients must face serious risks or trauma in the process. The group has released model legislation suggesting it would like to see similar language adopted across the country, not weakened by exceptions.
They really don’t want me talking when I bring up these medical issues. Because the medical issues are a lot more complex
– Sen. Richard Briggs, R-Knoxville, a heart surgeon.
During the call, one activist reminded the group about the law’s strict requirements for doctors. “The burden of proof, the onus, is on the doctor to prove that he or she was in the right.”
“It’s not that [the doctor] didn’t violate the text of the statute, it’s that they had a justifiable reason to do so,” said another activist. “And that reason — you’ve drawn it very narrowly — is to save her life, to prevent an organ system from failing.”https://tennesseelookout.com/wp-content/uploads/2022/11/Tennessee-Abortion_clip_1_so_the_way.mp3
A Tennessee lawmaker on the call suggested health data could be mined to track and investigate doctors, to make sure the abortions they provided to save patients’ lives were truly necessary.
The discussion also captured anti-abortion groups coaching legislators on messages aimed at swaying the wider public to support their stance.
One researcher said that when lawmakers are challenged about the state’s lack of exceptions for rape and incest cases, they should try to “hide behind the skirts of women” who carried such pregnancies to term and believe abortion is wrong. Others suggested “negativity” toward the law would fade and raised the possibility of regulating contraception and in vitro fertilization in a few years’ time.
ProPublica reached out to National Right to Life, Tennessee Right to Life, Susan B. Anthony Pro-Life America and the Charlotte Lozier Institute. They did not respond to emails and calls seeking comment.
In the chat box, state Rep. Susan Lynn, who originally sponsored the law in the House, typed a question: “9 months after the enactment of this law, can we organize with the crisis pregnancy centers to see some of these babies? <3.”
“A Lot More Complex”
Briggs, a heart surgeon and a retired U.S. Army colonel, was unimpressed.
A Methodist who considers himself a pro-life “Reagan Republican,” Briggs would prefer not to get involved with abortion politics at all. He told ProPublica that he sometimes wishes men would “recuse themselves from the whole thing, because we don’t need to be talking about that.”
But the trigger law he’d supported was now staring him in the face. As a physician, he felt the anti-abortion lobbyists were “skirting around” serious health care questions that the law’s language fails to address and instead were presenting “a simpleton’s message.”
“They really don’t want me talking when I bring up these medical issues,” Briggs said. “Because the medical issues are a lot more complex.”
When Tennessee Right to Life, the state’s main anti-abortion lobbying group, proposed the trigger ban in 2019, Briggs admits he barely read the two-page bill forwarded to his office.
He followed the lead of his colleagues, who assured state lawmakers that the bill included medical exceptions. He even added his name as a co-sponsor. “I’m not trying to defend myself,” he says now.
There was little pushback from advocates, doctors or Democrats at the time. Many took it to be a far-fetched stunt, doomed by the safeguards of Roe v. Wade.
When a Senate Democrat proposed changes that would allow abortion in cases of rape or incest, Briggs didn’t counter the chorus of “nays.”
The Democrat then narrowed her amendment to only apply to minors, but it was shot down too. The bill sailed through as originally written.
Briggs says he didn’t understand it at the time, but the law he voted for so quickly was part of a flurry of legislation that anti-abortion groups had pushed in Republican-majority statehouses after the confirmation of Supreme Court Justice Brett Kavanaugh energized the movement. Many states passed similar trigger bans, and Tennessee ended up with the strictest version: a criminal statute that contains no explicit exceptions. Not even for the life or health of the pregnant person.
It does include a legal mechanism called the “affirmative defense” that can be used in life-threatening emergencies. The defense is written in such a way that it means doctors who provide an abortion must “prove by a preponderance of evidence” that the procedure was necessary to save the pregnant patient’s life or prevent “irreversible impairment of a major bodily function.” No state agencies have released standards to help clarify what counts. The boundaries of enforcement would be left up to prosecutors and the courts.
In past years, Briggs often earned a 100% rating on Tennessee Right to Life’s scorecard for legislators who support the group’s policy priorities. But as outcry over the ban grew, he found himself agreeing with medical providers who said the law had gone too far.
“Here, the defendant is guilty until he can prove that he’s not guilty,” he said. “In my opinion, that is a very bad position to put the doctors in — why should this doctor have to pay his own legal bills for saving a woman’s life?” Sen. Richard Briggs, at left, in the Tennessee Senate Chambers in January 2022.(Photo: John Partipilo)
A judge blocked a similar “affirmative defense” provision in Idaho’s abortion ban for “injecting tremendous uncertainty” into emergency care for pregnant patients.
Many Republicans argue that physicians are fearmongering and say it’s inconceivable that a prosecutor would use their discretion to go after a doctor for terminating a pregnancy for someone whose life was at risk. In the more than two months since the law has gone into effect, they point out, zero doctors have been arrested.
The law’s goal, they say, is to shut down what they call “elective” abortions that often happened at family planning clinics like Planned Parenthood.
Briggs agrees with that goal. But he looked at abortion bans in other conservative Southern States: They included explicit exceptions.
His position seems to more closely reflect the attitudes of the majority of Tennesseeans: While 50% identify as “pro-life,” 80% believe abortion should be either completely legal or legal under some conditions.
But his public statements, particularly in a debate with his Democratic opponent ahead of last week’s election, led to tense meetings with anti-abortion groups, Briggs says.
The Oct. 27 video meeting was advertised as an opportunity to hear “why Tennessee’s law is on solid ground and how medical facts back it up.” Briggs registered to attend.
Opening the call, Brewer, the legal counsel and lobbyist for Tennessee Right to Life, implored lawmakers not to tell the press that they had only voted for the law because they thought Roe would never be overturned. He urged them not to agree to any calls for clarification or new exceptions.
Instead, he advised lawmakers to wait for any backlash to die down and to continue to “play offense” in the abortion wars.
“It’s not something that we stumbled into,” Brewer said on the call. “It wasn’t just a PR move or to stoke the fires of our base. This was a law that we knew would come into effect, hopefully sooner rather than later, and we wanted Tennessee to be prepared.”
He was joined by members of the national anti-abortion group Susan B. Anthony Pro-Life America and a researcher affiliated with their nonprofit arm, the Charlotte Lozier Insitute. None of the speakers had medical experience.
Katie Glenn, Susan B. Anthony Pro-Life America’s state policy director, counseled lawmakers to let the law sit for another 200 days before reacting to any polls that showed Americans want more exceptions. The protests, she assured them, would fade as people moved on.
“It can feel like, ‘What did we do? We need to go back and like, tear this all apart and open up the law and change all these things,’” she said “But I really want to urge you tonight, if you take away nothing else from what I say in the next few minutes, please have confidence in your work.”
She laid out why the anti-abortion movement sees Tennessee’s ban as so important: “The way that many state laws work is they’ll say, ‘Abortion, elective abortion, is generally illegal except in these situations.’ … That’s the way they phrase it, is around this word of an ‘exception,’” she said. “What y’all did is you said, ‘Elective abortion is illegal all the time.’”
Brewer contrasted an “emergency room middle of the night instance, where a woman is bleeding” — which he made clear he believes the law’s affirmative defense covers — with a situation where a woman might want to terminate a pregnancy because of a high-risk medical history.https://tennesseelookout.com/wp-content/uploads/2022/11/Tennessee-Abortion_clip_2_i_implore_you.mp3
“That is not an urgent need,” he said. “We want to make sure that these quasi-elective abortions are being stopped.”
Glenn said cases involving abortion pills should not be permitted under the law because the process takes multiple days.
The way that many state laws work is they’ll say, ‘Abortion, elective abortion, is generally illegal except in these situations.’ … What y’all did is you said, ‘Elective abortion is illegal all the time.
– Katie Glenn, Susan B. Anthony Pro-Life America’s state policy director
“Nothing about that is an emergency,” she said. Brewer and Glenn did not respond to requests for comment.
In the chat box, Lynn, the representative who first introduced the trigger ban, asked Brewer to check with the state Department of Health to find out if data could be monitored to flag doctors who performed abortions at a higher rate so they could be investigated to find out if patients’ lives were truly at risk.
“Do we need to follow up on that at some point and make sure that they are looking for the outliers?” she wrote.
“Yes we do,” Brewer responded.
Lynn did not respond to requests for comment.
After listening to the call, Briggs reflected on his 44 years of medical experience. He could think of plenty of dangerous and heart-wrenching situations that fall into the gray area Brewer and Glenn did not discuss.
What about ectopic pregnancies that grow outside the uterus, Briggs remembered thinking. If those aren’t dealt with, they could eventually rupture the fallopian tube, where most such pregnancies occur, and lead to death. Rarely, an ectopic pregnancy can attach to a cesarean scar, and in some of those cases, it may be possible to bring the pregnancy to term — though doing so risks serious complications, including uterine rupture and death. Yet the law gives no guidance on how to handle those cases, he thought. It defines a pregnancy simply as having a fertilized egg “within the body,” not specifically within the uterus. (Other abortion bans specify that treating an ectopic pregnancy is legal.)
Sometimes, Briggs knew, terminating a pregnancy could stop a dangerous condition before it becomes truly life-threatening. He pointed out other cases the law did not address: What about someone was diagnosed early in pregnancy with preeclampsia, which can lead to life-threatening complications? Or a patient whose water broke too early, leaving them nearly certain to eventually miscarry and at risk for sepsis? What about a patient with cancer or preexisting medical conditions that a pregnancy could brutally complicate?https://tennesseelookout.com/wp-content/uploads/2022/11/Tennessee-Abortion_clip_3_its_helpful.mp3
How sick did a patient need to be before a pregnancy could be terminated? And was a doctor really supposed to wait to provide that care until the patient faced a truly immediate life-or-death situation?
“I think that’s wrong. I think that’s not the standard of care,” Briggs said. “If you willfully neglect her, then that goes from being malpractice to criminal.”
More than 1,000 Tennessee medical professionals have publicly opposed the law on the grounds that it interferes with care for miscarriage, ectopic pregnancies, serious infections and cancers during pregnancy. They have joined activists in asking the governor to convene a special legislative session to review the law, but he has repeatedly said he’s comfortable with it.
It’s not something that we stumbled into. It wasn’t just a PR move or to stoke the fires of our base. This was a law that we knew would come into effect, hopefully sooner rather than later, and we wanted Tennessee to be prepared.
– Will Brewer, legal counsel and lobbyist, Tennessee Right to Life
Briggs said a woman recently told him she believed 100% of women with cancer would want to continue their pregnancies instead of terminating to undergo chemotherapy. But Briggs knew that wasn’t true. How would a cancer patient who is already a parent assess their chances, for example? “That could mean a child raised without their mother,” he said. “The bottom line is it’s a woman’s decision, it shouldn’t be the decision of the legislature that she can’t do chemotherapy.”
There are many situations like that, Briggs said. Situations that aren’t black-and-white, that involve an intensely personal risk assessment, where every option comes with some measure of heartbreak.
As a surgeon, Briggs had dealt with cases of fetal anomalies, including cases where babies would be born without properly developed hearts or brains. Some could be operated on, but others clearly wouldn’t be able to survive. Watching their induced deliveries was bracing. “You really have a little baby there you just let sit there until it dies — to get cold and die,” he said. “I think anybody would be affected.”
Briggs says some Republican leaders have asked him to further define the health exceptions he’d like to see in the law. But he doesn’t see lists as the answer. The American College of Obstetricians and Gynecologists has said creating lists of exceptions is dangerous because they can interfere with a medical provider’s ability to assess fast-moving health indicators.
“You can’t hit every exception — there has to be medical judgment,” Briggs said. Otherwise, “you’ve got the legislature practicing medicine, which they have no business at all doing.” “Hide Behind the Skirts of Women”
To Briggs, the anti-abortion lobbyists were asking lawmakers to respond to legitimate questions from voters with answers that weren’t based in science.
On the webinar, Briggs listened as the organizers brought on David C. Reardon, a researcher associated with the Charlotte Lozier Institute, the nonprofit research arm of Susan B. Anthony Pro-Life America. Reardon outlined a strategy that lawmakers could lean on when asked about rape and incest exceptions.
There is “no peer-reviewed medical evidence that shows that abortion in and of itself produces any benefit to women,” he advised the legislators to say. He claimed that abortion is connected with higher mortality and breast cancer rates. Briggs found his arguments suspect.
“Where in the world that came from, I have no idea,” Briggs said after the call. “I don’t think that Dr. Reardon was a physician.”
Reardon has a Ph.D. in biomedical ethics from a since-closed unaccredited online university, according to documents he provided to ProPublica. For decades, he has been publishing work that spreads doubts about the safety of abortion but that the wider medical community views as drawing inappropriate conclusions from cherry-picked data to serve an agenda.
“The flaws in his research are so profound that no person with minimal training in biostatistics and epidemiology would use these methods,” said Elizabeth Janiak, an assistant professor of social and behavioral science at Harvard T.H. Chan School of Public Health.https://tennesseelookout.com/wp-content/uploads/2022/11/Tennessee-Abortion_clip_4_and_maybe.mp3
The American Cancer Society says scientific evidence does not support the theory that abortions raise the risk of breast cancer. The National Academies of Sciences, Engineering and Medicine reviewed existing research and found the risk of death after a legal abortion is a small fraction of the risk of carrying a pregnancy to term. They also found that previous studies linking abortion and long-term mortality rates had not adjusted for social risk factors and “no clear conclusions” could be drawn from them. A large body of peer-reviewed work finds that having a wanted abortion is not associated with worse health or mental health outcomes. Instead, denying a woman a wanted abortion is linked to worse economic and health outcomes and can strengthen a woman’s ties to a violent partner.
Reardon told the lawmakers he recently co-authored a book that was based on interviews with nearly 200 women who became pregnant due to rape or incest and felt misunderstood by the public discussion around abortion. Some of them, he said on the call, were coerced into an abortion by the parent or abuser who sexually assaulted them “to cover up their crime.” Those who carried to term, he said, “were overwhelmingly glad that they did.” He suggested lawmakers use their stories when talking to voters.
“It’s a dangerous assumption that women who have rape pregnancies have to have an abortion,” Reardon said. “I encourage you to be able to, in a certain sense, hide behind the skirts of women who’ve actually been there. Bring their voices forward. Challenge the other side to demonstrate that abortion actually benefits women.”
When reached for comment, Reardon said the phrase “hide behind the skirts of women” wasn’t the word choice he intended.
“Even as it slipped out, I knew it wasn’t what and how I wanted to say it,” he said. “What I have been advocating for years is that politicians should invite the women who have actually had sexual assault pregnancies, no matter what side they are politically, to testify before their legislatures.”
Reardon said many of the experts and studies on this topic have ties to pro-abortion-rights groups and disputed that his research is misleading. He said he enrolled in a Ph.D. program at Pacific Western University at a time when no accredited programs in biomedical ethics existed, and because it allowed him to combine his studies with full time work and raising a family. He said the coursework involved reading, writing and submitting nearly 50 papers that demonstrated a solid understanding of foundational literature in addition to his dissertation, and that he has since been published in medical journals and invited to serve as a peer reviewer of other researchers looking into abortion issues.
In a detailed response, he also acknowledged more complexity than he had expressed on the call.
To lawmakers in the webinar, he said that abortion is “something we know increases mortality rates of women.”
In response to ProPublica, he said: “While it is difficult to prove when, if ever, abortion is ever the direct and sole cause of any negative effect, it is equally (and perhaps harder) to prove when, if ever, abortion is the direct cause of any positive effects.”
On the call, Stephen Billy, Susan B. Anthony Pro-Life America’s vice president for state affairs, advised lawmakers to follow the “mantra” of “contrast and compassion.” When questioned about rape and incest exceptions, he said, they could turn the question around.
“The other side’s position is an assumption that abortion is going to be the right decision at every point in time,” Billy said. “Voters in Tennessee will be with us when we say our position is to protect that child and just stand with that mother so she can love her child.”
But Briggs recalled wondering who was going to support those children, from buying diapers to paying for college. Those arguments rang hollow, he said, at a time when family health insurance costs businesses a reported $22,000 a year per employee and Republicans in his state have repeatedly blocked Medicaid expansion.
During his years working at a hospital, Briggs said, he had seen pregnancies carried by girls as young as 11. He believes there are ways to support children and adults who have been sexually assaulted and still allow the option of terminating the pregnancy. In the next legislative session, he said, he plans to support a bill that would test the DNA of any fetus aborted due to rape in order to confirm the attacker’s identity. The Next Battle
In the chat, Lynn asked for advice on answering questions about in vitro fertilization and the morning-after pill. IVF, a fertility treatment, generally involves creating multiple embryos, and some may ultimately be discarded. The morning-after pill is emergency contraception that prevents pregnancy if taken soon after unprotected sex. Some wings of the anti-abortion movement would like to see both banned or tightly limited because they believe those procedures amount to terminating human lives. The definition of an “unborn child” in Tennessee’s law starts at fertilization.
Responding to Lynn, the speakers suggested keeping the focus on the current law and reminding voters that IVF clinics and contraception are still available in Tennessee.
“Maybe your caucus gets to a point next year, two years from now, three years from now, where you do want to talk about IVF, and how to regulate it in a more ethical way, or deal with some of those contraceptive issues,” said Billy. “But I don’t think that that’s the conversation that you need to have now.” He did not respond to requests for comment.
As Billy wrapped up, he advised: “I think we have to be really careful that we don’t present our side of the argument as if we’re making the best decision for individual women.”
ProPublica asked about 70 lawmakers who sponsored the law if they wanted to see changes to it in the next legislative session. Two responded.
(Anti-abortion lobbyists) don’t want to change it one bit. It’s like: We won the election and we got what we want, and we’re not going to compromise.
– Sen. Richard Briggs, R-Knoxville
“Based upon our findings, it seems the current language is clear,” said state Rep. Ryan Williams.
“Just because somebody’s life started in a traumatic way does not mean that life should be destroyed,” said state Sen. Mark Pody.
In interviews, Brewer has said that he wants lawmakers to introduce bills that strike at the remaining avenues through which Tennesseans can access abortion. That could include passing laws that more tightly regulate online access to abortion pills and block companies from subsidizing employees’ travel to other states to terminate pregnancies. He said he would also like to stop “marketing efforts” from out-of-state abortion clinics that advertise within the state.
Brewer reminded the lawmakers: “We passed this law to put our state in a strong position. And we need to defend this law.”
Briggs didn’t raise any of his concerns during the webinar. He said he had already voiced them to Brewer in private conversations.
“They don’t want to change it one bit,” Briggs said of Tennessee Right to Life. “It’s like: We won the election and we got what we want, and we’re not going to compromise.”
Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: email@example.com. Follow Tennessee Lookout on Facebook and Twitter.
Published on November 17, 2022.