Tennessee abortion ban would not apply to unused IVF embryos, AG says

Tennessee's abortion ban does not apply to embryos created outside a womb, according to a new opinion released by Attorney General Jonathan Skrmetti.

The news likely brings peace of mind to families seeking fertility treatments and related health care.

The act "does not apply to a human embryo before it has been transferred to a woman’s uterus and, therefore, disposing of a human embryo that has not been transferred to a woman’s uterus is not punishable as a 'criminal abortion,'" the opinion released this week reads.

State Senate Majority Leader Jack Johnson, R-Franklin, requested the information after he was contacted by a constituent undergoing IVF treatment.

"While I felt that the law was clear and that it did not apply to this particular case and others like it, I was more than happy to ask the Attorney General for his opinion to clear up any perceived misunderstandings in the law and was pleased that the Attorney General arrived at the same conclusion," Johnson said in a statement.

Although an embryo that has not been implanted may fit the law's definition of an "unborn child," Skrmetti found, there are other important elements of the law to consider before its disposal can be defined as an abortion.

Nothing in the law prohibits disposing embryos that have not been implanted, Skrmetti wrote. If an embryo has not been implanted, then no one is pregnant. And "if there is no pregnancy to terminate, there can be no abortion" the opinion reads.

The opinion does not include a definition for "living." The state's strict abortion ban sets life at conception, well before an embryo reaches viability.

No exceptions listed in Tennessee abortion law

Tennessee’s “trigger ban” abortion law was officially enacted in August, following the U.S. Supreme Court ruling overturning the Roe v. Wade precedent earlier this summer.

The law was passed in 2019 by anti-abortion Republicans. After it took effect, medical professionals, including those who work in fertility, began raising concerns about the lack of exceptions in the law.

The law includes no exceptions for pregnancies resulting from rape and incest, nor does it have an exception for abortions performed to prevent the severe injury or death of a pregnant patient. Doctors say abortions are medically necessary in certain circumstances, such as during an ongoing but incomplete miscarriage that threatens the life of the patient.

Politicians defend law

Gov. Bill Lee has repeatedly said he’s comfortable with the law as is.

Other Republican lawmakers have claimed the law is designed to allow doctors to perform abortions during medical emergencies threatening a mother's life.

But the law doesn’t actually include that exception.

Any doctor who performs any abortion for any reason could face criminal charges under the law. It does provide an "affirmative defense" clause, through which an abortion provider could defend the procedure if the pregnant patient was in danger of dying or debilitating injury. The clause takes effect only after criminal felony charges have been filed.

Anti-abortion supporters of the law have argued no prosecutor would pursue a doctor for an abortion performed due to a medical emergency. Investigation and enforcement of the law falls to local law enforcement. The Tennessean in September surveyed all 32 district attorneys on what priority they place on investigating and pursuing criminal prosecutions around abortion.

Few of them responded, but Barry Staubus in Sullivan County called the law “uncharted territory.”

Skrmetti's office has not yet returned a request for comment.