After three years, a high-profile lawsuit challenging Tennessee’s near-total abortion ban was scheduled to start trial on Monday. But the state’s attorney general took advantage of a new law governing such challenges, and the trial is canceled.
Tennessee’s abortion ban has a carve out for life-threatening emergencies. Critics say the wording is too vague, which can be a problem when medical staff is facing potential prison time for its decisions. The ban punishes providers, not patients. If convicted, they face up to 10 years.
Allie Phillips was among the patients who filed the lawsuit in 2023.
“It’s devastating because I got into this lawsuit because I didn’t want anybody else to go through what my family did,” she said. “It’s traumatic.”
Earlier that year, when she was 18 weeks pregnant, she learned the daughter she was expecting wasn’t going to make it. She’d developed a heart with only two of the four chambers it needed to work — among other abnormalities. Phillips’s doctor said she had two options: wait until she miscarried, or get an abortion. But she couldn’t do the latter in Tennessee.
She and her husband launched a GoFundMe and raised enough money to cover her travel to New York City. During the procedure, she learned learned the fetal heartbeat had stopped. She was at risk for sepsis.
That’s the story Phillips was going to tell at trial in a Davidson County courtroom this week. Instead, Tennessee Attorney General Jonathan Skrmetti used a new tool created by the General Assembly in March. It allows the attorney general to file an appeal at any time.
Usually, the trial happens in lower court. After a decision, the losing side can file an appeal. And the fight continues in a higher court.
The new law says the attorney general can skip that when someone is challenging a state law. And last week, that’s what Skrmetti did.
“The trial was set over a year ago,” Phillips said. “The fact that we were two business days away, and just by the snap of a finger, it’s done, we’re taken off the calendar. This is like a game to them. It’s disgusting, to put it nicely.”
More: Seven Tennessee women say they were denied medically necessary abortions.
Nicolas Kabat is one of the attorneys representing Phillips and the other plaintiffs. He criticized the new law.
“It’s unfair to any litigant that would be in a similar situation — whether or not you’re talking about guns, talking about abortion rights, talking religious freedom,” he said. “Any state in this situation shouldn’t allowed to do what the state has done here.”
The case is moving on, but there won’t be a public trial in Davidson County. And Kabat says it’s likely the appeals court will take several months to catch up on all the paperwork and history needed to begin reviewing the case.
“And justice delayed is justice denied,” he said. “These women have been fighting to tell their stories since 2023, when they filed this case, and they’ve just been strung along for years by the state.”
The early appeal option is new to Tennessee, but Skrmetti says it’s not new to the legal profession.
“There’s nothing unusual about appealing an appealable order,” Skrmetti said in a pre-recorded statement. “The state law that allows this pretrial appeal mirrors federal law that has been in place since 1949.”
He also noted that lawmakers have already amended the law to clarify medical exceptions.
The re-write mirrored a court order from this same lawsuit. It lists specific conditions that qualify for a medical exception. Critics in the medical community said that did create more flexibility, but it also highlighted how little lawmakers outside of the medical profession understand about pregnancy complications.
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