Lawyer's mission: Translate Tenn.'s bewildering abortion ban
Chloe Akers considers herself a grizzled criminal defense attorney. Until a few months ago, she didn’t spend much time thinking about abortion — for all her 39 years, abortion was not a crime, so she’d never imagined having to defend someone accused of performing one.
She tried to explain an affirmative defense in a way people without a law degree might understand it: It is akin to claiming self-defense after killing someone. A prosecutor might decide the killing was justified and decide not to charge. But that’s entirely up to the prosecutor. If they do charge, the defendant is at the mercy of the courts.
“I need to know you,” she wrote. “I think physicians and people will be very confused about the affirmative defense. How close to dead does the patient need to be?” One day soon in Tennessee, a doctor will inevitably see a woman whose water breaks early, weeks before viability, Zite said. She will not be on her death bed, but risks infection, sepsis, bleeding.
Akers can’t stop thinking about an oncologist who described a scenario pregnant women face with some regularity: They are diagnosed with aggressive cancer in early pregnancy, when they cannot receive chemotherapy or radiation.Before, doctors would have hard conversations with patients about how they would like to proceed. They could delay treatment, understanding that their cancer might grow.
But she’s grown indignant about the confusion that continues to swirl over what the law really says. Many, including legislators who passed it, insist it includes an exemption to save the mother’s life. “I think there is this hope in people. That because this is so unreasonable and because this is so antithetical to what we think of as fair and just and American, that they’re like, surely, surely someone’s not going to prosecute this. Right?” she said. “But I have seen cases that would make your skin crawl.”
Brewer has said — and has written in published essays — that the law should be interpreted as only applying to elective abortions, when the sole reason for termination is that the mother doesn’t want a baby. Chloe Akers, left, talks with Rabbi Laurie Rice and Dr. Nancy Lipsitz, right, before giving a presentation at Congregation Micah synagogue, Friday, Aug. 5, 2022 in Brentwood, Tenn.“You still end up in the same place at the end of the day,” he said of the line between an exemption and a defense. “But you just make sure the due diligence was done and that the law was treated with the seriousness that it deserves.
And these Ohio laws governed only later-term abortions, which account for a tiny fraction of terminations, she said. The post-Roe laws like the one in Tennessee will govern virtually all pregnancies, so the number of times a termination could be questioned in court will skyrocket. “We’re being told there’s this very fine tightrope where you can follow the law. And if you fall one way, you’re committing a felony and if you fall the other way and you wait too long, then someone can sue you for malpractice. It feels pretty much impossible,” she said. “What am I supposed to do?”
Tennessee already ranks toward the top of the list of states with abysmal maternal mortality rates, and Zahedi worries this will make matters worse. The patient, a woman of strong faith, agonized over the choice, and Zahedi lived through that grief and despair alongside her. The patient didn’t want to risk leaving her two living children motherless and decided to terminate.