Like most people, Rachel Fulton had never had to sit through a legal hearing.
That is, she hadn’t until Friday. It was the first hearing in a lawsuit challenging the medical exception portion of Tennessee’s abortion ban. She is one of the plaintiffs.
“I’m not a lawyer,” Fulton said just after the hearing. “I’ve never been in a courtroom before. And so it was just — it was a lot.”
The Center for Reproductive Rights, seven patients and two doctors filed their lawsuit last year. They are arguing that Tennesseans — including the women named in the lawsuit — are being wrongfully denied medically needed abortions because the law’s vagueness leaves doctors in the lurch. The ambiguity, they say, drives doctors to refuse care more often than they should for fear of going to prison.
A panel of three judges heard two arguments on Friday. The first: attorneys for the state said the lawsuit needs to be dismissed. The second: litigants saying the court needs to hit the brakes on the law’s enforcement while its constitutionality is being challenged.
The hearing was a slog for those involved — a full day of technical jargon and case law citations, all in a basement room with no windows.
For the women, there was another layer to the draining day. The discussion was centered on some of their most painful experiences, which are all detailed in the case filings.
Fulton was pregnant with her second son when she learned there was underdevelopment in the nervous system, lower spine, lungs, abdomen, feet and hands. He wasn’t expected to survive after birth. Tennessee’s abortion law doesn’t have exceptions for unviable pregnancies. Fulton was also showing signs of life-threatening complications, but she was denied an abortion. She ended up driving to Illinois — an eight-hour trek each way with a 3-year-old and dog in the car.
That story, along with the others’, briefly popped up on a slideshow. But for the most part, attorneys hinted at the stories and treated them as hypotheticals.
“It was really overwhelming,” Fulton said. “It was the full rollercoaster of emotions. I was sad, I was angry, I was — you name it.”
The day wasn’t any easier for Rebecca Milner.
“It was very physically and emotionally draining and exhausting,” she said. “And there are parts that felt very raw. And there are also times where it still feels surreal because it hasn’t been that long since I lost my daughter.”
It was just a few months ago.
She and her husband found out she was pregnant in February of last year, after six years of fertility treatments. At her 20-week appointment, her care providers said her amniotic fluid was low. In a follow-up, she found out her water broke early, effectively ending the pregnancy.
This is a condition called pre-term premature rupture of membranes; colloquially, people call it P-PROM. Despite it being a common medical reason for an abortion, Milner was denied the procedure.
Doctors told her the infection had started before the abortion and the delay in getting the procedure had allowed the infection to worsen, according to the lawsuit. Sepsis can be lethal, and about one in five people who develop the infection die, according to the National Institutes of Health.
Milner wasn’t in the initial filing against the state. She said she wasn’t far enough along in her grieving journey at first. She started seeing media reports about other states’ abortion bans, including depictions of anti-abortion lawmakers saying women wanted medical exceptions for convenience.
She became one of four women who joined the lawsuit later.
“I was appalled that the traumas that people endure are waved off as inconvenience,” she said, “and I knew that I could no longer sit on the sideline.”
The state’s attorneys made several arguments about why the litigants don’t have standing, which would mean they don’t have the proper authority to file a lawsuit. Courts have to decide on cases where the plaintiffs are directly affected, and the Tennessee says that’s not the case for the seven women.
“That is because any of their direct, future injuries depend on a series of hypothetical and speculative events — first, a future pregnancy, then, a rare reoccurrence of health conditions serious enough to cause them to pursue abortions,” the state’s motion to dismiss reads in part. “Each link in this chain is itself too tenuous to support standing—much less can Plaintiffs show an adequate prospect of all contingencies occurring.”
The state’s attorneys also argued that these medical conditions are rare.
“There are 80,000 births a year in Tennessee,” said Whitney Hermandorfer, the director of the Strategic Litigation Unit within the attorney general’s office. “What we’re talking about here are edge cases.”
Like Fulton, Milner said it was difficult to hear her story referenced in the hearing and treated like a hypothetical.
“I don’t know if I’m supposed to be one of these ‘edge case’ patients that they were talking about today,” she said. “But in the real world, whether or not what happened to me connects to that court case that they were citing doesn’t change what I endured and how it was impacted by the law in the state of Tennessee.”
