It was always an uphill battle for Healthy and Free Tennessee, founded in 2012, to do their work advocating for reproductive freedom. Nearly a year ago, when the state became one of the first to ban abortion post-Dobbs under a trigger law, their mission seemed almost impossible.
But in spite of everything, they’ve managed to clinch a major victory in the last legislative session and push an ultra-conservative statehouse to repeal an arcane law that criminalized pregnant people for self-managing their abortions. “This was happening before Roe v. Wade was overturned,” says Briana Perry, interim executive director for Healthy and Free Tennessee. “One can imagine, with Roe v. Wade being overturned, how this law being on the books could be a way to increase criminalization of pregnant people who manage their own abortions.”
That’s not theoretical. In 2015, Anna Yocca was charged with attempted procurement of a miscarriage for trying to self-manage her abortion with a coat hanger. (Healthy and Free Tennessee was involved in Yocca’s defense.) The law, considered the state’s first such legislation on abortion, passed in 1883. It was meant to ban abortion long before Roe v. Wade was ever considered, but when it resurfaced less than a decade ago in the prosecution against Yocca, it became apparent that it was still alarmingly relevant. After the then-32-year-old spent more than a year in jail, Yocca pled guilty to the charge of attempting to procure a miscarriage in exchange for her release.
Getting that criminalization law off the books became a priority for Healthy and Free Tennessee. When Roe fell, that priority became all the more critical, and the murmurs that criminalizing pregnant people could be a next step in the Right’s push against abortion rights were growing louder. Indeed, the foundation for criminalization already existed: A study by National Advocates for Pregnant Women (NAPW), a reproductive justice organization, found that between 1973 and 2005, there were 413 cases in which a pregnant person’s civil liberties were denied on the basis that they were endangering a fertilized egg, an embryo or a fetus. NAPW has said that between 2006 and 2020, they pinpointed 1,254 such cases.
Meanwhile, state legislators — even those opposed to abortion — seemed to be getting queasy over the rigidity of the abortion ban they passed after the Dobbs ruling and anti-abortion lobbyists took notice. Last fall, ProPublica obtained a recording of a phone call between groups like Tennessee Right to Life and the Susan B. Anthony List and Tennessee legislators in which the anti-abortion groups were working to convince lawmakers to hold the line on Tennessee’s ban, then considered one of the strictest in the nation. At the time, Tennessee banned abortion with only a narrow carve-out for life-saving medical procedures. If challenged, it would fall on the physician to prove that was, indeed, the circumstance — never mind that medicine is never that black-and-white. There is no bright line between life and death.
“It can feel like, ‘What did we do? We need to go back and like, tear this all apart and open up the law and change all these things,’” said Katie Glenn, Susan B. Anthony Pro-Life America’s state policy director, during that call. “But I really want to urge you tonight, if you take away nothing else from what I say in the next few minutes, please have confidence in your work.”
Now, Perry says it appears that there’s some room to create protections. “I think legislators are trying to clarify that they think it’s important to show that the intent is not to criminalize pregnant people,” she said.
The repeal of the procurement of a miscarriage law was included in legislation that intended to clear up some of the confusion around Tennessee’s ultra-narrow exceptions and take some legal pressure off of doctors. In every version of that bill that was introduced in the 2023 session, Healthy and Free Tennessee made sure that provision was included. On Friday, Senate Bill 745 became law. The bill explicitly exempts ectopic and molar pregnancies from the abortion ban and allows doctors to perform abortions their “reasonable” medical judgment is that an abortion would prevent the death or “to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” With it, the 1883 law died.