Tennessee Governor Bill Lee Signs Bill Criminalizing Mail-in Abortion Drugs into Law

Tennessee Governor Bill Lee (R) signed a pro-life law that would criminalize manufacturers, suppliers, pharmacies, physicians, qualified physicians, or other persons providing an abortion-inducing drug via courier, delivery, or mail service.

House Bill 2416 was sponsored by Representative Debra Moody and passed the last month in the state Senate 26-4 vote. The Tele-Med Abortion Pill Ban has become law with Lee’s signature and will go into effect on Jan. 1, 2023.

“An individual who intentionally, knowingly, or recklessly violates this bill commits a Class E felony and, upon conviction, will be fined an amount not to exceed $50,000, be imprisoned for a term not to exceed 20 years, or both. A criminal penalty will not be assessed against a patient upon whom a chemical abortion is attempted or performed,” according to the new law.

Present law prohibits a physician from performing or attempting to perform any abortion, including a medically induced abortion, or prescribing any drug or device intended to cause a medical abortion, except in the physical presence of the pregnant woman. Present law also prohibits the administering or dispensing of a drug or device intended to cause a medical abortion to a pregnant woman except in the physical presence of her physician. This bill deletes those provisions and enacts the following in regard to abortion-inducing drugs:

(1) An abortion-inducing drug may be provided only by a qualified physician following the procedures set forth in this bill;

(ii) A manufacturer, supplier, pharmacy, physician, qualified physician, or other person may not provide an abortion-inducing drug via courier, delivery, or mail service;

(3) A qualified physician providing an abortion-inducing drug must examine the patient in-person and, prior to providing an abortion-inducing drug verify and determine certain information, as specified in this bill, and inform the patient that the patient may see the remains of the unborn child in the process of the abortion;

(4) A qualified physician providing an abortion-inducing drug must be credentialed and competent to handle complication management, including emergency transfer, or must have a signed agreement with an associated physician who is credentialed to handle complications and be able to produce the signed agreement on demand by the patient or the department;

(5) A qualified physician providing an abortion-inducing drug, or an agent of the qualified physician, must schedule a follow-up visit for the patient at approximately seven to 14 days after administration of the abortion-inducing drug to confirm that the pregnancy is completely terminated and to assess the degree of bleeding;

(6) An individual or entity must not provide an abortion-inducing drug in an elementary, secondary, or postsecondary school facility or on school grounds;

(7) A qualified physician must not provide an abortion-inducing drug to a pregnant patient without the informed consent of the pregnant patient. This bill sets out in detail the requirements for informed consent (See Section 63-6-1106 of this bill) and requires that it be obtained at least 48 hours before the abortion-inducing drug is provided to the pregnant patient, except, if, in the qualified physician’s reasonable medical judgment, compliance poses a greater risk of the following: the death of the pregnant patient; or the substantial and irreversible physical impairment of a major body function, not including psychological or emotional conditions, of the pregnant patient;

(8) The department of health must publish state-prepared, printed materials on informed consent for abortion and include a statement regarding the potential ability of qualified medical professionals to reverse the effects of an abortion obtained through the use of abortion-inducing drugs being available, along with specified contact information;

(9) As part of the informed consent counseling services discussed above in item (7), the qualified physician must inform the pregnant patient about abortion pill reversal and provide the patient with the state-prepared materials regarding abortion pill reversal;

(10) A report of each chemical abortion performed must be made to the department. This bill sets out in detail the requirements for the reports (see Section 63-6-1108 of this bill). This bill requires the department to summarize aggregate data from the reports and submit the data to the United States centers for disease control and prevention for the purpose of inclusion in the annual vital statistics report. A physician, including emergency medical personnel, who treats a patient for complications or an adverse event arising from an abortion, must file a written report as required by this bill with the department;

(11) An individual who intentionally, knowingly, or recklessly violates this bill commits a Class E felony and, upon conviction, will be fined an amount not to exceed $50,000, be imprisoned for a term not to exceed 20 years, or both. A criminal penalty will not be assessed against a patient upon whom a chemical abortion is attempted or performed;

(12) In addition to all other remedies available under the laws of this state, failure to comply with this bill:

(A) Provides a basis for a civil malpractice action for actual and punitive damages;

(B) Provides a basis for professional disciplinary action for the suspension or revocation of the license of a healthcare provider or facility;

(C) Provides a basis for recovery for the patient’s survivors for the wrongful death of the patient under a wrongful death action; and

(D) Provides a basis for a cause of action for injunctive relief against an individual who has provided an abortion-inducing drug in violation of this bill to prevent the enjoined defendant from providing further abortion-inducing drugs in violation of this bill. The action may be maintained by: a patient to whom the abortion-inducing drug was provided; an individual who is the spouse, parent, or guardian of, or a current or former licensed healthcare provider of, a patient to whom the abortion-inducing drug was provided; or a prosecuting attorney with appropriate jurisdiction;

(13) Civil liability will not be imposed against a patient on whom a chemical abortion is attempted or performed;

(14) If judgment is rendered in favor of the plaintiff, the court must also render judgment for reasonable attorney fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the court may render judgment for attorney fees in favor of the defendant against the plaintiff; and

(15) The attorney general and reporter may bring an action to enforce compliance with this bill or intervention as a matter of right in a case in which the constitutionality of this bill is challenged.

For rule promulgation purposes, this bill will take effect upon becoming a law. For all other purposes, this bill will take effect January 1, 2023.

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