Tennessee

Legal analysis

Tennessee's near-total abortion ban, codified at Tenn. Code Ann. § 39-15-213, was enacted in 2019 as a 'trigger law' conditioned on the overruling of Roe v. Wade. It took effect August 25, 2022, thirty days after the Attorney General notified the Tennessee Code Commission of the Dobbs judgment. The ban prohibits 'the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy' from fertilization. The only operative exception—originally an affirmative defense, converted in April 2023 to a true exception—permits a licensed physician to perform an abortion in a licensed hospital or ambulatory surgical treatment center upon determining, using reasonable medical judgment, that abortion is necessary to prevent the pregnant woman's death or serious risk of substantial and irreversible impairment of a major bodily function. The ban expressly does not subject the pregnant woman to criminal conviction. Tenn. Const. art. I, § 36 (Amendment 1, 2014) states: 'Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.' The trigger ban is in full force and supersedes all other gestational-age bans in the Tennessee Code. A temporary injunction in Blackmon v. State (renamed Phillips v. State) clarifies certain emergency conditions but does not enjoin the ban itself.

Legal analysis

Tenn. Code Ann. § 39-15-213(a)(1) defines 'abortion' as 'the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to terminate an ectopic or molar pregnancy, or to remove a dead fetus.' 'Fertilization' is defined in § 39-15-213(a)(2) as 'that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.' 'Pregnant' is defined in § 39-15-213(a)(3) as 'the human female reproductive condition of having a living unborn child within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.' 'Unborn child' is defined in § 39-15-213(a)(4) as 'an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.' The definition's exclusion of ectopic and molar pregnancies and removal of a dead fetus means these procedures are not subject to the criminal abortion prohibition. Medication abortion drugs like mifepristone and misoprostol fall within the 'medicine, drug' language of the definition. IVFs and embryos stored outside the womb are not covered because the definition requires a 'pregnant' condition of 'having a living unborn child within her body.'

Legal analysis

Tenn. Code Ann. § 39-15-213(b) criminalizes performing or attempting to perform an abortion as a Class C felony. Subsection (c)(1) provides the sole exception: the abortion must be (1) performed or attempted by a licensed physician, (2) in a licensed hospital or ambulatory surgical treatment center, (3) upon the physician's determination using reasonable medical judgment that 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,' and (4) performed in the manner providing 'the best opportunity for the unborn child to survive' unless that would pose greater risk to the pregnant woman. Subsection (c)(2) explicitly excludes determinations based on mental health or self-harm. Subsection (d) shields accidental death of or unintentional injury to the unborn child during medical treatment. Subsection (f) expressly provides that this section supersedes §§ 39-15-211 (viability ban), 39-15-212 (20-week ban), 39-15-214 through 39-15-218 (including the cascading gestational limits and reason bans). The ban was added by 2019 Tenn. Acts, ch. 351, § 2, effective on the thirtieth day following the issuance of the judgment overruling Roe. The Dobbs judgment issued July 26, 2022, making the effective date August 25, 2022.

Legal analysis

The trigger ban (Tenn. Code Ann. § 39-15-213) is not enjoined and is in full force. In Blackmon v. State of Tennessee, No. 23-1196-IV(I) (Tenn. Ch., filed Sept. 11, 2023), the Chancery Court for the Twentieth Judicial District (Davidson County) issued a temporary injunction on October 17, 2024, barring enforcement of the criminal abortion ban and related disciplinary proceedings against physicians who provide abortion care for specific conditions: previable preterm premature rupture of membranes (PPROM), dilation of the cervix prior to viability (either by preterm labor or cervical insufficiency), and fatal fetal diagnoses that lead to maternal health complications (such as severe preeclampsia, mirror syndrome associated with fetal hydrops, or maternal infection resulting in uterine rupture and possible loss of fertility). This is not a complete injunction of the ban but a judicial clarification that these conditions fall within the 'medical necessity exception.' The case was renamed Phillips v. State following the addition of plaintiff Allie Phillips. The litigation continues with trial delayed. Separately, in Welty v. Dunaway, No. 3:24-CV-00768 (M.D. Tenn.), the federal court permanently enjoined the 'recruitment' provision of the abortion-trafficking statute on First Amendment grounds but left the 'harboring' and 'transportation' provisions in effect. The admitting-privileges and ASTC TRAP requirements (Tenn. Code Ann. §§ 39-15-202(j) and 68-11-201(3)) were permanently enjoined in Adams & Boyle, P.C. v. Slatery, No. 3:15-CV-00705 (M.D. Tenn.).

Legal analysis

Tenn. Code Ann. § 39-15-213(c)(1)(A) permits abortion when a licensed physician determines, using reasonable medical judgment based on facts known at the time, that abortion is 'necessary to prevent the death of the pregnant woman.' This is a true exception—not merely an affirmative defense—since the 2023 amendment (2023 Tenn. Acts, ch. 313). The physician must also comply with subsection (c)(1)(B): performing the abortion 'in the manner which, using reasonable medical judgment, based upon the facts known to the physician at the time, provides the best opportunity for the unborn child to survive, unless using reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk of death to the pregnant woman or substantial and irreversible impairment of a major bodily function.' Subsection (c)(2) bars any determination based 'upon a claim or a diagnosis that the pregnant woman will engage in conduct that would result in her death or the substantial and irreversible impairment of a major bodily function or for any reason relating to the pregnant woman's mental health.' The procedure must be in a licensed hospital or ambulatory surgical treatment center.

Legal analysis

The health exception is co-located with the life exception in Tenn. Code Ann. § 39-15-213(c)(1)(A): 'serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.' The 2025 amendment by 2025 Tenn. Pub. Acts ch. 217 (SB1004/HB0990) added statutory definitions to § 39-15-213(a): 'Inevitable abortion' means 'a dilation of the cervix prior to viability of the pregnancy, either by preterm labor or cervical insufficiency'; and 'Serious risk of substantial and irreversible impairment of a major bodily function' means 'any medically diagnosed condition that so complicates the pregnancy of a woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function,' which '[m]ay include previable preterm premature rupture of membranes; inevitable abortion; severe preeclampsia; mirror syndrome associated with fetal hydrops; and an infection that can result in uterine rupture or loss of fertility,' and '[d]oes not include any condition related to the woman's mental health.' This legislation effectively codified conditions previously identified in the Blackmon temporary injunction. The same physician, facility, and manner-of-procedure requirements apply as for the life exception.

Legal analysis

Tenn. Code Ann. § 39-15-213(c)(2) states: 'An abortion is not authorized under subdivision (c)(1)(A) and a greater risk to the pregnant woman does not exist under subdivision (c)(1)(B) if either determination is based upon a claim or a diagnosis that the pregnant woman will engage in conduct that would result in her death or the substantial and irreversible impairment of a major bodily function or for any reason relating to the pregnant woman's mental health.' This categorical exclusion means that even severe psychiatric conditions triggered or exacerbated by pregnancy do not qualify for the exception. This provision is not subject to any current injunction.

Legal analysis

Tenn. Code Ann. § 39-15-213 provides no exception for pregnancy resulting from rape. Tenn. Const. art. I, § 36 explicitly preserves the legislature's authority to regulate abortion 'including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother,' but the legislature has chosen not to exercise this authority to create a rape exception. Proposed legislation creating rape and incest exceptions has been introduced but defeated. No injunction or court order creates a rape exception.

Legal analysis

Tenn. Code Ann. § 39-15-213 provides no exception for incest. Tenn. Code Ann. § 37-10-303(c) provides that if a criminal charge of incest is pending against a parent, that parent's written consent is not required for a minor's abortion, but this merely waives the parental-consent requirement and does not create a substantive exception to the abortion ban. Under the total ban, the minor would still need to qualify for the medical-emergency exception. No court order creates an incest exception.

Legal analysis

There is no standalone fatal-fetal-anomaly exception in Tenn. Code Ann. § 39-15-213. The October 2024 Blackmon temporary injunction listed 'fatal fetal diagnoses that lead to maternal health complications, such as severe preeclampsia or mirror syndrome associated with fetal hydrops, or maternal infection that will result in uterine rupture and the possible loss of the patient's fertility' as falling within the medical necessity exception. The 2025 legislative clarification (2025 Tenn. Pub. Acts ch. 217) similarly lists these conditions as encompassed within 'serious risk of substantial and irreversible impairment of a major bodily function.' The key requirement is that the fetal diagnosis must cause or be accompanied by a serious maternal health risk—the diagnosis alone, however fatal or severe, is insufficient.

Legal analysis

Tenn. Code Ann. § 39-15-213(a)(1) expressly excludes from the definition of 'abortion' actions taken 'to terminate an ectopic or molar pregnancy, or to remove a dead fetus.' The statute does not define 'dead fetus,' but the Abortion Defense Network interprets this as meaning no embryonic or fetal cardiac activity is present. Treatment for incomplete miscarriage in the absence of fetal cardiac activity is thus not an 'abortion' and not subject to the criminal prohibition. Contraception is separately excluded: 'abortion-inducing drug' is defined in Tenn. Code Ann. § 63-6-1102 to include mifepristone, misoprostol, and methotrexate when prescribed with intent to cause abortion, but excludes 'drugs that may be known to cause an abortion that are prescribed for other medical indications.' Emergency contraception and IUDs prevent conception or implantation and thus are not 'abortions.'

Legal analysis

Under Tenn. Code Ann. § 39-15-213(b), any use of an 'instrument' to terminate a pregnancy is criminal abortion, a Class C felony, unless the medical-emergency exception of subsection (c) applies. Tenn. Code Ann. § 39-15-209 separately prohibits 'partial-birth abortion'—defined as deliberately and intentionally delivering a living fetus vaginally until, in the case of a head-first presentation, the entire fetal head is outside the mother's body or, in breech presentation, any part of the fetal trunk past the navel is outside, and then performing an overt act to kill the partially delivered fetus. Violation is a Class C felony. This statute has a life-endangerment exception and expressly exempts the pregnant woman from prosecution. Though § 39-15-213(f) states the trigger ban supersedes § 39-15-209, the partial-birth abortion ban remains on the books; its continuing enforceability depends on whether § 39-15-213's supersession is total or merely resolves conflicts. The admitting-privileges requirement (§ 39-15-202(j)) and the ASTC facility requirement for clinics performing 50+ surgical abortions (Tenn. Code Ann. § 68-11-201(3)) were permanently enjoined in Adams & Boyle v. Slatery.

Legal analysis

Under Tenn. Code Ann. § 39-15-213(a)(1), 'abortion' includes termination by 'medicine' or 'drug,' so medication abortion is subject to the same prohibition as procedural abortion. Additionally, the Tennessee Abortion-Inducing Drug Risk Protocol Act, Tenn. Code Ann. §§ 63-6-1101 et seq. (2022 Tenn. Pub. Acts ch. 1001), imposes independent requirements: 'An abortion-inducing drug may be provided only by a qualified physician' (§ 63-6-1103(a)); the physician must 'examine the patient in person' (§ 63-6-1103(b)(1)); and 'a manufacturer, supplier, physician, qualified physician, or other person may not provide an abortion-inducing drug through a courier, delivery, telemedicine, or mail service' (§ 63-6-1103(b)(2)). An 'abortion-inducing drug' is defined to include mifepristone, misoprostol, and methotrexate when prescribed with intent to cause abortion (§ 63-6-1102(2)). Violations are punishable by a civil penalty of $50,000 and potential medical-board discipline. The separate telemedicine restriction in Tenn. Code Ann. § 63-1-155(e) provides that the general telemedicine standard-of-practice statute 'does not apply to or restrict the requirements of the Tennessee Abortion-Inducing Drug Risk Protocol Act.' Because the trigger ban prohibits all abortion, the medication-specific statutes are effectively redundant but would independently govern if the trigger ban were enjoined.

Legal analysis

Tenn. Code Ann. § 39-15-213(e) states: 'This section does not subject the pregnant woman upon whom an abortion is performed or attempted to criminal conviction or penalty.' This is an express statutory exemption for the pregnant woman. Tenn. Code Ann. § 39-15-216(f) contains an equivalent exemption for the now-superseded heartbeat law. Tenn. Code Ann. § 39-13-107(c) provides that '[n]othing in subsection (a) shall apply to any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant, or to any lawful medical or surgical procedure to which a pregnant woman consents.' Tennessee's former 'fetal assault' law (2014 Tenn. Pub. Acts ch. 820) which criminalized drug use by pregnant women, sunset on July 1, 2016, and was not renewed. The practical result is that self-managed abortion is not directly criminalized as to the pregnant person herself. However, the state's prohibition on mailing or delivering abortion-inducing drugs (Tenn. Code Ann. § 63-6-1103(b)(2)) could be used to prosecute the sender or facilitator. A provider treating a person who has self-managed an abortion is not required to report that person for having self-managed; mandatory reporting requirements are limited to specific circumstances like suspected child abuse (for patients under 13) and fetal deaths meeting certain weight/gestational-age thresholds.

Legal analysis

Tenn. Code Ann. § 39-15-213(c)(1) requires that a qualifying abortion be 'performed or attempted by a licensed physician' in 'a licensed hospital or ambulatory surgical treatment center.' The informed-consent statute, § 39-15-202(g), defines 'the physician' as 'any person who is licensed to practice medicine or osteopathy in this state.' The medication abortion statute, Tenn. Code Ann. § 63-6-1103(a), provides that '[a]n abortion-inducing drug may be provided only by a qualified physician.' Tenn. Code Ann. § 63-6-1102(6) defines 'qualified physician' as 'a person licensed to practice medicine or osteopathy under Title 63, Chapter 6 or 9.' Tenn. Comp. R. & Regs. 1130-01-.21(3) explicitly prohibits physician assistants from providing medication abortion. The admitting-privileges requirement (§ 39-15-202(j)) and ASTC facility requirement (§ 68-11-201(3)) were permanently enjoined by consent judgment in Adams & Boyle, P.C. v. Slatery, No. 3:15-CV-00705 (M.D. Tenn. Apr. 13, 2017). The Sixth Circuit's en banc decision in Bristol Regional Women's Center v. Slatery, 7 F.4th 478 (6th Cir. 2021), reinstated the 48-hour waiting period and other informed-consent provisions but did not disturb the permanent injunction of the TRAP provisions.

Legal analysis

Tenn. Code Ann. § 39-15-213(e): 'This section does not subject the pregnant woman upon whom an abortion is performed or attempted to criminal conviction or penalty.' Tenn. Code Ann. § 39-15-216(f) (the heartbeat/gestational-age ban) contains a parallel exemption. Tenn. Code Ann. § 39-15-209(a)(2) exempts the woman from the partial-birth abortion prohibition. Tenn. Code Ann. § 39-13-107(c) exempts the pregnant woman from the fetal-homicide/victim statute. Under general Tennessee accomplice-liability law (Tenn. Code Ann. § 39-11-402), a person cannot be an accomplice to an offense of which she is the victim, further insulating the pregnant woman. In practice, Tennessee prosecutors have not charged women who obtained or self-managed abortions. The woman could theoretically face charges under other statutes—e.g., drug possession, child endangerment, or evidence-tampering—but none of these are abortion-specific and would depend on case-specific facts.

Legal analysis

Criminal abortion: Class C felony (Tenn. Code Ann. § 39-15-213(b)), punishable by 3-15 years imprisonment (Tenn. Code Ann. § 40-35-111(b)(3)) and up to $10,000 fine (Tenn. Code Ann. § 40-35-111(b)(3)). An intentional or knowing violation of the informed-consent/waiting-period requirements (§ 39-15-202(a)-(d), (f)(2)) is a Class E felony (§ 39-15-202(h)(1)), punishable by 1-6 years. An intentional, knowing, or reckless violation of the consent-form delivery or medical-records documentation requirements is a Class A misdemeanor (§ 39-15-202(h)(2)), punishable by up to 11 months 29 days. Any intentional, knowing, or reckless violation of § 39-15-202 constitutes unprofessional conduct, subjecting the physician's license to suspension or revocation (§ 39-15-202(h)(3)). Upon criminal charge for violating the gestational-age/heartbeat ban (§ 39-15-216), the physician must report to the board of medical examiners in writing within seven calendar days (§ 39-15-216(g)). The consent-form violations also carry license consequences (§ 39-15-202(h)(3)).

Legal analysis

Tenn. Code Ann. § 63-6-1103(a) limits provision of abortion-inducing drugs to 'a qualified physician.' Tenn. Code Ann. § 63-6-1102(6) defines 'qualified physician' as a person licensed to practice medicine or osteopathy. Tenn. Comp. R. & Regs. 1130-01-.21(3) explicitly prohibits physician assistants from providing medication abortion. Pharmacists who dispense abortion-inducing drugs could face discipline under Tenn. Code Ann. § 63-10-101 et seq. (Pharmacy Practice Act) for unprofessional conduct, and potentially accomplice liability under Tenn. Code Ann. § 39-11-402 for aiding the commission of criminal abortion. Out-of-state prescriptions for mifepristone/misoprostol would violate Tennessee law if the medication is dispensed to a patient in Tennessee. Tennessee does not have a shield law protecting out-of-state prescribers who mail pills into the state.

Legal analysis

Tenn. Code Ann. § 39-15-213(b) criminalizes 'a person who performs or attempts to perform an abortion.' Tenn. Code Ann. § 39-11-402 provides that a person is criminally responsible as an accomplice if, '[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.' Clinical staff assisting a physician in performing an unlawful abortion—preparing the patient, administering medication, monitoring vitals, or handling instruments—could fall within this provision. Additionally, the medication-abortion statutes (Tenn. Code Ann. §§ 63-6-1101 et seq.) impose civil penalties of up to $50,000 on any person who 'provides' abortion-inducing drugs in violation of the act. No prosecutions of clinical staff have been reported in Tennessee, but the threat of prosecution is not merely theoretical.

Legal analysis

Under Tenn. Code Ann. § 39-11-402, general accomplice liability extends to anyone who, acting with intent to promote or assist commission of an offense, aids another person to commit it. Tenn. Code Ann. § 39-15-201 (abortion trafficking of minors, effective July 1, 2024) creates a specific offense: an adult who 'intentionally recruits, harbors, or transports a pregnant unemancipated minor within this state' for the purpose of concealing, procuring, or obtaining an abortion that would constitute criminal abortion under § 39-15-213 commits a Class A misdemeanor with mandatory imprisonment of 11 months and 29 days. The recruitment provision was permanently enjoined in Welty v. Dunaway, No. 3:24-CV-00768 (M.D. Tenn. Jul. 18, 2025), on First Amendment grounds. The harboring and transportation provisions remain in effect. Subsection (e) creates a civil cause of action for 'wrongful death of an unborn child who was aborted,' with the right to sue vested in the biological mother, the biological father (unless the pregnancy resulted from his criminal sexual conduct), or a parent/legal guardian. Recoverable damages include economic, noneconomic, and punitive damages plus attorney fees. Parents/legal guardians, common carriers, and ambulance personnel are exempt (§ 39-15-201(c)). The minor's consent is not a defense (§ 39-15-201(d)). Medical diagnosis or consultation regarding pregnancy care is not covered (§ 39-15-201(f)(1)), but this exception excludes arranging for travel (§ 39-15-201(f)(2)).

Legal analysis

Tenn. Code Ann. § 39-15-201(a) criminalizes an adult who 'recruits, harbors, or transports a pregnant unemancipated minor within this state' for the purpose of procuring an abortion that would violate § 39-15-213 'regardless of where the abortion is to be procured.' The recruitment provision was permanently enjoined by Welty v. Dunaway, No. 3:24-CV-00768 (M.D. Tenn. Jul. 18, 2025). Harboring and transportation remain enforceable. Tennessee also prohibits local governments from expending funds 'for travel to another state for the purpose of obtaining an abortion that would be prohibited in Tennessee' (Tenn. Code Ann. §§ 5-9-115, 6-56-113, 7-3-106). For adults, there is no free-standing criminal statute specifically targeting out-of-state travel assistance. However, Tenn. Code Ann. § 39-11-402 (accomplice liability) and conspiracy statutes could theoretically reach those who aid an illegal abortion performed within Tennessee. The state has not to date prosecuted individuals for assisting an adult's out-of-state abortion travel.

Legal analysis

Tenn. Code Ann. §§ 5-9-115, 6-56-113, 7-3-106 prohibit counties, municipalities, and metropolitan governments from expending funds 'for travel to another state for the purpose of obtaining an abortion that would be prohibited in this state.' These are recent provisions targeting local-government efforts to fund reproductive healthcare access. Tenn. Code Ann. § 9-4-5116 prohibits state funds from being expended to perform abortions, with exceptions only for pregnancies resulting from rape or incest and to save the woman's life (mirroring Hyde). There is no SB8-style civil-bounty mechanism in Tennessee. Private funding of abortion or abortion travel is not separately criminalized by statute. However, a person who provides funds with intent to assist the commission of criminal abortion could theoretically be charged as an accomplice under Tenn. Code Ann. § 39-11-402.

Legal analysis

Tenn. Code Ann. § 63-6-1103(b)(2) provides that 'a manufacturer, supplier, physician, qualified physician, or other person may not provide an abortion-inducing drug through a courier, delivery, telemedicine, or mail service.' The penalty is a civil penalty of $50,000 per violation (§ 63-6-1106) and potential discipline by the relevant licensing board (§ 63-6-1107). This provision applies regardless of where the sender is located. FDA preemption arguments have been raised in litigation about similar laws in other states (notably the Texas and Louisiana mifepristone cases; see FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), preserving mifepristone access), but no court has held that the FDA's regulation of mifepristone preempts state criminal or civil prohibitions on its mail delivery. Tennessee has no shield law that would protect an out-of-state mail-order prescriber or pharmacy.

Legal analysis

There is no Tennessee statute criminalizing the provision of information or referrals about lawful out-of-state abortion to adults. The abortion-trafficking statute's 'recruitment' provision (Tenn. Code Ann. § 39-15-201(a), formerly including 'recruits' in the prohibited conduct) was permanently enjoined in Welty v. Dunaway, No. 3:24-CV-00768 (M.D. Tenn. Jul. 18, 2025), on First Amendment grounds. Judge Gibbons, sitting by designation from the Sixth Circuit, held that the recruitment provision was an unconstitutional content-based restriction because it criminalized speech advocating lawful conduct. The 'harboring' and 'transportation' provisions (which regulate conduct rather than speech) were left in place. Under the permanent injunction, providing information, counseling, referrals, or even persuading a minor about out-of-state abortion is protected speech. The statute's carve-out for 'medical diagnosis or consultation regarding pregnancy care' (§ 39-15-201(f)(1)) also shields medical providers' communications, though the carve-out explicitly excludes 'arranging for travel...without the consent of the unemancipated minor's parent or legal guardian' (§ 39-15-201(f)(2)).

Legal analysis

Tennessee has not enacted any general civil-bounty or private-enforcement mechanism comparable to the Texas Heartbeat Act (SB8). The only civil cause of action in Tennessee's abortion code is Tenn. Code Ann. § 39-15-201(e), which creates a civil claim for 'wrongful death of an unborn child who was aborted' that can be asserted by specific parties (the biological mother, the biological father unless the pregnancy resulted from his criminal sexual conduct, or the parent/legal guardian) against a person who violated the abortion-trafficking statute. This is a targeted remedy tied to the minor-trafficking offense, not a broad private-enforcement scheme open to any citizen.

Legal analysis

Tenn. Code Ann. § 39-15-202(d)(1) provides: 'no abortion shall be performed until a waiting period of forty-eight (48) hours has elapsed after the attending physician or referring physician has provided the information required by subsections (b) and (c), including the day on which the information was provided.' Subsection (d)(2) contains a fallback: 'If any court temporarily, preliminarily, or permanently enjoins enforcement of subdivision (d)(1) or declares it unconstitutional, then the waiting period imposed by subdivision (d)(1) shall be twenty-four (24) hours.' The waiting period was reinstated after the Sixth Circuit granted Tennessee's request for an administrative stay (Bristol Reg'l Women's Ctr. v. Slatery, 994 F.3d 774 (6th Cir. 2021)), and the full Sixth Circuit later upheld it en banc (7 F.4th 478). A medical-emergency exception exists but uses different language (§ 39-15-202(f)) from the trigger ban's emergency exception, creating potential uncertainty about when the waiting period must be observed during a true medical emergency.

Legal analysis

Tenn. Code Ann. § 39-15-202(b) requires that 'the attending physician who is to perform the abortion, or the referring physician' provide information 'orally and in person' to the pregnant woman. The required disclosures include: pregnancy confirmation (§ 39-15-202(b)(1)); probable gestational age (§ 39-15-202(b)(2)(A)); if ultrasound is performed, an offer to learn results including presence or absence of fetal heartbeat (§ 39-15-202(b)(2)(B)); viability at 24+ weeks LMP (§ 39-15-202(b)(3)); availability of public and private agencies to assist during pregnancy and after birth (§ 39-15-202(b)(4)); and medical benefits and risks of abortion vs. continuing pregnancy (§ 39-15-202(b)(5)). Subsection (c) adds particular risks of the patient's specific pregnancy and a description of the method of abortion. Subsection (i) requires posting of anti-coercion signs in facilities where abortions are performed. Failure to comply is a Class E felony or Class A misdemeanor depending on the specific provision violated (§ 39-15-202(h)). The Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), upheld state-scripted informed-consent requirements provided they are 'truthful, nonmisleading' and do not impose an 'undue burden.'

Legal analysis

Tenn. Code Ann. § 39-15-202(b)(2)(B) states: 'If an ultrasound is performed as part of the examination prior to performing the abortion, the person who performs the ultrasound shall offer the woman the opportunity to learn the results of the ultrasound. If the woman elects to learn the results of the ultrasound, the person who performs the ultrasound or a qualified healthcare provider in the facility performing the ultrasound shall, in addition to any other information provided, inform the woman of the presence or absence of a fetal heartbeat and document the patient has been informed.' Tenn. Code Ann. § 39-15-215, which contains more detailed ultrasound requirements, is superseded by the trigger ban under § 39-15-213(f) while the trigger ban is in effect. The ultrasound requirement is thus at the 'offered' level: the patient must be offered results, and if she accepts, must be told about fetal heartbeat presence or absence. She cannot be compelled to view images or hear heart tones.

Legal analysis

Tenn. Code Ann. § 39-15-202(b) requires that the mandated information be provided 'orally and in person' by the physician (first visit). Subsection (d)(1) requires a 48-hour waiting period after the information is provided before the abortion may be performed (second visit). Subsection (d)(1) further requires that after the 48 hours have elapsed, 'the patient shall sign the consent form required by subsection (b).' Thus, the statutory scheme compels a minimum of two in-person visits. The medical-emergency exception in § 39-15-202(f) can excuse these requirements, but its definition ('a condition that...so complicates a medical condition of a pregnant woman as to necessitate an immediate abortion') differs from the trigger ban's exception language, potentially creating ambiguity.

Legal analysis

Tenn. Code Ann. § 37-10-303(a)(1): 'No person shall perform an abortion on an unemancipated minor unless such person or such person's agent first obtains the written consent of one (1) parent or the legal guardian of the minor.' The consent must be signed. The provider must obtain 'written documentation, other than the written consent itself, that purports to establish the relationship of the parent or guardian to the minor.' Both documents must be retained for at least one year. Failure to obtain or retain documentation is a Class B misdemeanor, punishable only by a fine, unless the failure was due to a bona fide imminent medical emergency. Subsection (a)(2) makes impersonating a parent or guardian a Class A misdemeanor. Subsection (c) waives the consent requirement from a parent against whom a criminal charge of incest under § 39-15-302 is pending. The judicial-bypass mechanism is set forth in § 37-10-303(b) and § 37-10-304. A medical-emergency exception to parental consent exists under § 37-10-303 (implied by the 'bona fide, imminent medical emergency' language) and § 37-10-301(2) (defining medical emergency for this part).

Legal analysis

Tenn. Code Ann. § 37-10-303(b) authorizes a minor to petition the juvenile court 'on the minor's own behalf, or by next friend.' Tenn. Code Ann. § 37-10-304 sets forth the procedures: the court must rule within 48 hours of the filing of the petition (excluding Saturdays, Sundays, and holidays). If the court fails to rule within that window, the petition is deemed granted. The minor is entitled to court-appointed counsel. The proceedings are confidential, and the minor may proceed under a pseudonym. The standard for granting the waiver is set forth in Tennessee Supreme Court Rule 24: the minor must prove by clear and convincing evidence either (1) that she is mature and well-informed enough to make the abortion decision independently, or (2) that an abortion without parental consent is in her best interests. Appeal lies to the circuit court and then to the court of appeals, both on an expedited basis. There is no residency requirement—a minor from another state may use Tennessee's bypass procedure if she is seeking an abortion in Tennessee. Under the total ban, the judicial-bypass procedure applies only when a minor qualifies for the medical-emergency exception.

Legal analysis

Tennessee has no spousal-consent or spousal-notice requirement on the books. The U.S. Supreme Court in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), held that spousal-consent requirements are unconstitutional because the state may not 'give to a man the kind of dominion over his wife that parents exercise over their children.' In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court struck down a spousal-notice requirement as an undue burden. Although Dobbs overruled Roe and Casey's viability framework, it did not expressly address the spousal-consent holdings of Danforth, leaving their continued vitality uncertain. However, Tennessee has not enacted any such requirement, so the question is academic in this jurisdiction.

Legal analysis

Not applicable. Tennessee has no spousal-consent or notice statute. Under Planned Parenthood v. Danforth, 428 U.S. 52 (1976), spousal-consent requirements were held unconstitutional. Under Planned Parenthood v. Casey, 505 U.S. 833 (1992), spousal-notice requirements were also held unconstitutional. Whether Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), revives the possibility of spousal-involvement laws is undecided: Dobbs overruled Roe and Casey but did not directly address Danforth. The Tennessee legislature has shown no interest in enacting spousal-involvement legislation, and the 2014 constitutional amendment (Tenn. Const. art. I, § 36) did not change this.

Legal analysis

Tenn. Code Ann. § 39-15-201(e)(2)(B) grants the biological father standing to bring a civil wrongful-death action under this section unless the pregnancy resulted from his commission of aggravated rape (§ 39-13-502), rape (§ 39-13-503), statutory rape or aggravated statutory rape (§ 39-13-506), rape of a child (§ 39-13-522), aggravated rape of a child (§ 39-13-531), statutory rape by an authority figure (§ 39-13-532), especially aggravated rape (§ 39-13-534), especially aggravated rape of a child (§ 39-13-535), or incest (§ 39-15-302). There is no general statute giving the father a right to notice of, consent to, or veto over an abortion, and no Tennessee court has recognized such a right at common law. The 2014 constitutional amendment did not create paternal rights. The general wrongful-death statute (Tenn. Code Ann. § 20-5-106) has been interpreted by Tennessee courts to allow a wrongful-death claim for a viable fetus (generally after about 24 weeks), which could give the father standing to bring such a claim if the fetus is viable and dies through a tortious act.

Legal analysis

Tenn. Code Ann. § 39-13-107(a) provides: 'For the purposes of this part, "another," "individuals," and "another person" include a human embryo or fetus at any stage of gestation in utero, when any such term refers to the victim of any act made criminal by this part.' This Part 1 of Title 39, Chapter 13 includes the assaultive offenses: assault, aggravated assault, reckless endangerment, vehicular assault, and homicide. Thus, a third party who causes the death of or injury to a fetus can be charged with the same offenses as if the victim were a born person. Subsection (c) provides: 'Nothing in subsection (a) shall apply to any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant, or to any lawful medical or surgical procedure to which a pregnant woman consents, performed by a health care professional who is licensed to perform such procedure.' Subsection (b) preserves the pre-existing abortion statutes from being affected by this section. The law was amended in 2012 (2012 Tenn. Acts ch. 1006) and 2014 (2014 Tenn. Acts ch. 820). The state's 2014 'fetal assault' law, which specifically criminalized drug use during pregnancy as assault against the fetus, was enacted through 2014 Tenn. Acts ch. 820 but sunset on July 1, 2016, and was not renewed.

Legal analysis

Tennessee's general wrongful-death statute, Tenn. Code Ann. § 20-5-106, provides a cause of action when a 'person' dies from injuries caused by another's wrongful act. Tennessee courts have interpreted this to include a viable fetus. See, e.g., Roe v. Catholic Diocese of Memphis, 950 S.W.2d 27 (Tenn. Ct. App. 1996) (recognizing wrongful death claim for viable fetus). The abortion-trafficking statute, Tenn. Code Ann. § 39-15-201(e), separately creates a civil claim for 'wrongful death of an unborn child who was aborted,' triggered by violation of the trafficking offense, and applies regardless of viability. Recoverable damages include economic damages, noneconomic damages, punitive damages, and reasonable attorney fees and court costs (§ 39-15-201(e)(3)). The cause of action may be brought by the biological mother, the biological father (with the criminal-conduct exclusion), or a parent/legal guardian of the unemancipated minor.

Legal analysis

Tenn. Code Ann. § 39-15-213(a)(4) defines 'unborn child' as 'an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.' This definition is cross-referenced by multiple statutes: § 39-15-211 (viability ban), § 39-15-216 (cascading gestational limits/heartbeat ban), § 39-15-214 (legislative findings including statements about fetal development), and others in Part 2 of Chapter 15. The fetal-homicide statute, § 39-13-107(a), uses different language—'human embryo or fetus at any stage of gestation in utero'—but achieves a similar scope. However, the personhood language is expressly limited by the abortion-code exceptions: it does not apply to the pregnant woman's own acts (§ 39-15-213(e)), to lawful medical procedures (§ 39-13-107(c)), or to ectopic/molar pregnancies and removal of a dead fetus (§ 39-15-213(a)(1)). It does not have general application across the Tennessee Code for purposes like tax law, inheritance, or census enumeration.

Legal analysis

Tenn. Code Ann. § 63-6-1103(b)(2) provides that abortion-inducing drugs may not be provided 'through a courier, delivery, telemedicine, or mail service.' Subsection 63-6-1103(b)(1) requires the qualified physician to 'examine the patient in person.' Tenn. Code Ann. § 63-1-155(e) explicitly provides that the general telemedicine standard-of-practice statute 'does not apply to or restrict the requirements of the Tennessee Abortion-Inducing Drug Risk Protocol Act.' The informed-consent statute, § 39-15-202(b), requires that the mandated information be provided 'orally and in person' by the physician. These statutory provisions together foreclose any scenario in which abortion medication could be lawfully prescribed through telehealth to a patient in Tennessee. Out-of-state telemedicine prescribers who prescribe abortion medication to Tennessee patients violate Tennessee law and could face civil penalties and potential criminal exposure.

Legal analysis

There is no Tennessee statute that criminalizes an adult's out-of-state travel to obtain or facilitate a lawful abortion. The abortion-trafficking statute, Tenn. Code Ann. § 39-15-201, applies only to unemancipated minors and criminalizes the helper, not the minor. Tennessee does not have a statute purporting to extend its criminal jurisdiction to out-of-state conduct beyond the trafficking law's specific reach. The state's local-government funding bans (§§ 5-9-115, 6-56-113, 7-3-106) prohibit public expenditure for out-of-state abortion travel but do not criminalize private travel. In Dobbs, the Supreme Court did not address the constitutionality of laws restricting interstate travel for abortion, and this question remains open. No Tennessee statute currently tests this boundary for adults.

Legal analysis

Tennessee has no shield-law statute protecting abortion providers, patients, or helpers from out-of-state civil or criminal investigations, subpoenas, extradition requests, or professional-license actions related to lawful abortion care provided in Tennessee to out-of-state residents. Tennessee is not among the 22 states and D.C. that have enacted such protections. To the contrary, Tenn. Code Ann. § 39-15-201 expressly applies extraterritorially: it penalizes conduct within Tennessee (recruiting, harboring, transporting a minor) 'regardless of where the abortion is to be procured.' This makes Tennessee a hostile jurisdiction for cross-border abortion assistance, at least for minors. The Tennessee Attorney General has not publicly sought to investigate or prosecute out-of-state abortion providers who serve Tennessee residents, but no law prevents such action.

Legal analysis

Tenn. Code Ann. § 9-4-5116 provides: 'No state funds shall be expended to perform abortions. The limitations established in this section shall not apply to an abortion if: (1) The pregnancy is the result of an act of rape or incest; or (2) In the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.' Tennessee is a Hyde-only state; it does not use state funds to cover medically necessary abortions beyond the Hyde categories. There is no court order requiring broader Medicaid coverage. The Tennessee Supreme Court in Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1 (Tenn. 2000), once held that the Tennessee Constitution's right to privacy included a right to abortion, which could have required broader Medicaid coverage, but that decision was superseded by the 2014 constitutional amendment (Tenn. Const. art. I, § 36).

Legal analysis

Tenn. Code Ann. § 56-26-134 provides: 'No health care plan required to be established in this state through an exchange pursuant to federal health care reform legislation...shall offer coverage for prohibited abortion services as described in § 39-15-213.' The ACA (42 U.S.C. § 18023) permits states to opt out of requiring exchange plans to cover abortion. Tennessee has exercised this option. The restriction covers plans in the individual and small-group markets offered through the federally facilitated marketplace. There is no statute requiring all private insurance plans to exclude abortion coverage, but under the total ban, coverage is irrelevant for most abortions. Self-funded employer plans regulated by ERISA are not directly subject to Tennessee's insurance regulations, though they may choose to exclude abortion coverage and many do.

Legal analysis

Tenn. Code Ann. § 56-26-134 prohibits exchange plans from covering 'prohibited abortion services as described in § 39-15-213.' Since § 39-15-213 criminalizes virtually all abortions, the practical effect is a near-complete ban on exchange-plan abortion coverage. Under the ACA's Section 1303 (42 U.S.C. § 18023), states may enact laws restricting abortion coverage in exchange plans, and Tennessee has done so. The restriction does not apply to plans sold outside the exchange or to self-funded ERISA plans.

Legal analysis

Tenn. Code Ann. § 9-4-5116 prohibits state funds from being expended to perform abortions. Tennessee does not have a statute that broadly prohibits all state funding to entities that perform abortions (unlike some states' 'defunding' laws that bar any state funds—including for non-abortion services—from going to organizations that also provide abortions). However, Tennessee's loss of Title X funding in 2023 was a direct result of its policy position: under a Biden-era HHS rule requiring Title X grantees to provide neutral abortion counseling and referrals, the Tennessee Department of Health declined to comply and was disqualified. The $7 million grant was redirected to Planned Parenthood of Tennessee and North Mississippi, the first time a state lost Title X funds under the new rule.