Tennessee § 39-15-201 - Criminal abortion and attempt to procure criminal miscarriage — Penalties — Lawful previability abortions and attempts to procure miscarriage — Requirements.

§ 39-15-201. Criminal abortion and attempt to procure criminal miscarriage — Penalties — Lawful previability abortions and attempts to procure miscarriage — Requirements.

For the purpose of this section: “Abortion” means the administration to any woman pregnant with child, whether the child be quick or not, of any medicine, drug, or substance whatever, or the use or employment of any instrument, or other means whatever, with the intent to destroy the child, thereby destroying the child before the child's birth; and “Attempt to procure a miscarriage” means the administration of any substance with the intention to procure the miscarriage of a woman or the use or employment of any instrument or other means with such intent. Every person who performs an abortion commits the crime of criminal abortion, unless such abortion is performed in compliance with the requirements of subsection (c). Criminal abortion is a Class C felony. Every person who attempts to procure a miscarriage commits the crime of attempt to procure criminal miscarriage, unless the attempt to procure a miscarriage is performed in compliance with the requirements of subsection (c). Attempt to procure a criminal miscarriage is a Class E felony. Every person who compels, coerces, or exercises duress in any form with regard to any other person in order to obtain or procure an abortion on any female commits a misdemeanor. A violation of this section is a Class A misdemeanor. No person is guilty of a criminal abortion or an attempt to procure criminal miscarriage when an abortion or an attempt to procure a miscarriage is performed under the following circumstances: During the first three (3) months of pregnancy, if the abortion or attempt to procure a miscarriage is performed with the pregnant woman's consent and pursuant to the medical judgment of the pregnant woman's attending physician who is licensed or certified under title 63, chapter 6 or 9; or After three (3) months, but before viability of the fetus, if the abortion or attempt to procure a miscarriage is performed with the pregnant woman's consent and in a hospital as defined in § 68-11-201, licensed by the state department of health, or a hospital operated by the state of Tennessee or a branch of the federal government, by the pregnant woman's attending physician, who is licensed or certified under title 63, chapter 6 or 9, pursuant to the attending physician's medical judgment. No abortion shall be performed on any pregnant woman unless the woman first produces evidence satisfactory to the physician performing the abortion that she is a bona fide resident of Tennessee. Evidence to support the claim of residence shall be noted in the records kept by the physician and, if the abortion is performed in a hospital, in the records kept by the hospital. A violation of this subsection (d) is punished as provided by subdivision (b)(1). Acts 1989, ch. 591, § 1; 2017, ch. 353, § 2. Sentencing Commission Comments. Sections 39-15-201 — 39-15-208 are identical to prior code ch. 4, part 2 of this title. No substantive changes were made in these sections. Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Acts 2017, ch. 353, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Tennessee lnfants Protection Act.” Cross-References. Abortion prohibited if fetus viable, § 39-15-211 . Parental consent for abortion by minor, title 37, ch. 10, part 3. Penalties for Class C and E felonies, § 40-35-111 . Penalty for Class A misdemeanor, § 40-35-111 . Viability determination, § 39-15-212 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 28.63. Law Reviews. Legal Rights and Issues Surrounding Conception, Pregnancy and Birth, 39 Vand. L. Rev. 597 (1986). The Paradox of Family Privacy, 53 Vand. L. Rev. 527 (2000). Attorney General Opinions. Constitutionality of defining viability at specific stage of gestation, OAG 97-062 (5/5/97). Health of the mother exception, OAG 97-062 (5/5/97). The use of RU-486 can, depending on when the drug is administered to a given individual, fall under the definition of an “abortion” under T.C.A. § 39-15-201(a)(1) ; if the drug is administered before implantation of the embryo in the uterine wall, the drug is a contraceptive, but if the drug is administered after implantation of the embryo in the uterine wall, the drug serves to cause an abortion, OAG 01-30 (3/7/01). If the Tennessee Constitution’s protection for a right to an abortion, except to save the woman’s life or if the pregnancy resulted from incest or rape, were removed and the portions of § 39-15-201 and § 39-15-202 that were held unconstitutional in Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1 (Tenn. 2000) were reenacted, the statutes would still be subject to strict scrutiny analysis and would be unconstitutional, OAG -04-055 (3/30/2004). Status of abortion laws, OAG 05-071 (5/3/05). The provisions of SB 2686/HB 2681 (Acts 2010, ch. 879) do not apply to forms of birth control that may result in the expulsion of a fertilized egg before it is implanted in the uterine lining. However, on a case-by-case basis, administration of an abortifacient such as mifepristone could constitute an “abortion” as defined under T.C.A. § 39-15-201(a)(1) if it were used after implantation of an embryo in the uterine lining. OAG 10-54, 2010 Tenn. AG LEXIS 54 (4/19/10). Passage of Amendment No. 1 to Article I of the Tennessee Constitution (Tenn. Const. Art. I, sec. 36) supersedes the 2000 Tennessee Supreme Court decision of Planned Parenthood of Middle Tennessee v. Sundquist , 38 S.W.3d 1 (Tenn. 2000). Following passage of this amendment there is no fundamental right to abortion in the Tennessee Constitution requiring a strict scrutiny analysis of any statute affecting abortion. After passage of Amendment 1, any statute imposing restrictions upon a woman’s right to an abortion must withstand scrutiny under the United States Constitution, including scrutiny under the “undue burden” standard established by the U.S. Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992). It is not clear whether statutory provisions struck down by Sundquist , if reenacted, would survive scrutiny under this standard. OAG 15-13, 2015 Tenn. AG LEXIS 13 (2/6/15). Senate Bill 244/House Bill 108, 110th Tenn. Gen. Assem. (2017), filed in January 2017, would make certain changes to Tennessee’s criminal abortion statute. While some of the proposed changes are constitutionally defensible, the proposed prohibition on abortion, absent a medical emergency, after the detection of a fetal heartbeat and before viability of the fetus, is constitutionally suspect. OAG 17-15, 2017 Tenn. AG LEXIS 15 (3/1/2017). House Bill 101/Senate Bill 766 would amend Tennessee’s criminal abortion statute by extending several of its existing restrictions to apply to pregnancies when the fetus has reached a gestational age of 20 weeks. The proposed legislation is constitutionally infirm because its hospitalization requirement does not include the constitutionally-mandated medical emergency exception and because under current, controlling United States Supreme Court precedent a state may not prohibit the pre-viability termination of a pregnancy. House Bill 1189/Senate Bill 1180 would enact a new “Tennessee Infants Protection Act.” Parts of the new Act are also constitutionally suspect, particularly with respect to the proposed post-viability abortion ban and the viability testing requirement. OAG 17-24, 2017 Tenn. AG LEXIS 22 (3/31/2017).