Chloe Akers sees herself as a grizzled criminal defense attorney. Until a few months ago, she didn’t spend much time thinking about abortion: in all her 39 years, abortion was not a crime, so she never imagined she would have to defend someone accused of doing it.
That changed in June when the Supreme Court overturned Roe v. Wade. Akers sat down in her law firm and withdrew Tennessee’s new criminal abortion statute.
He didn’t read it through a political lens; it doesn’t matter if she likes a law. He read it as he would any other statute: what makes it illegal?
She was shocked.
Tennessee law makes abortion a crime. There are no exceptions. This is the part that Akers has since found herself having to repeat, eliciting raised eyebrows and deep breaths: unlike the abortion bans in many states, this law does not explicitly exempt abortions performed to save a mother’s life.
Instead, it offers doctors an “affirmative defense”. The difference is linguistically subtle but extraordinarily significant in criminal law, Akers says. The law makes it illegal to carry out all abortions. Instead of having to prove that the procedure was not medically necessary, the law shifts the burden on the doctor to convince a court that it was.
He opened Instagram, where he sometimes explains criminal law to a handful of followers. If she had known that 2 million people would end up watching, including congressmen and country music stars, she would have brushed her hair and spit gum.
He tried to explain an affirmative defense in a way that people without a law degree might understand it: it’s like claiming self-defense after killing someone. A prosecutor might decide the murder was justified and decide not to charge. But it depends entirely on the prosecutor. If they do, the accused is at the mercy of the courts.
“It’s about to become real and it may not happen to you. But it will happen here, “she said in her video of hers. For those who were scared or confused, she added words of support:” You know exactly where to find me. “
And they did. His inbox was flooded with thousands of messages, so many he couldn’t keep up.
The mayor wrote. Socialites invited her to show up for dinners. The doctors asked for guidance. A female motorcycle group asked her to come and talk to them.
She had accidentally become the state’s chief interpreter of this law, which went into effect on August 25. Within days she quit her comfortable job in a law firm and started a non-profit organization she called Standing Together Tennessee. For the past two months, she has been traveling across the state on a tour to explain abortion law to doctors and the intricacies of pregnancies to lawyers who may need to defend them.
Nikki Zite, a Knoxville gynecologist, has signed up to be the medical director of the nonprofit organization.
Zite is a complex family planning doctor. Since Roe fell, she has treated two ectopic pregnancies, in which the pregnancy is growing outside the uterus, usually in the fallopian tubes. An ectopic pregnancy may never be viable and can rupture if allowed to continue growing. Dismissal is standard treatment. Yet Zite found herself looking over her shoulder.
“What if someone disagrees with me? Will I go to jail? “He asks himself.” We are now at the mercy of the criminal justice system. “
Will Brewer, a lawyer and lobbyist with Tennessee Right to Life, thinks lawyers like Akers and doctors fretting over the wording are exaggerating the possible consequences.
“I think it will be difficult for you to find a prosecutor who will prosecute a doctor when he can back up their claim that he did it to save their mother’s life,” Brewer said.
He said lawmakers chose the wording for a specific reason: to raise the bar as high as possible for doctors to perform an abortion. Exemptions are easier to abuse, she said. Yet he believes that the law gives them a large margin: it does not require death to be imminent and it does not mean that every decision will be considered.
Yet Akers makes phone calls several times a day from terrified doctors.
Leilah Zahedi, a Chattanooga gynecologist, called recently to say she had been called by the hospital’s lawyers who reminded her that if she hesitates too long and a pregnant patient is in pain, she could be responsible for negligence.
“We are told there is this beautiful tightrope where you can follow the law. And if you fall one way, you are committing a crime, and if you fall the other way and wait too long, someone can sue you for negligence. It seems practically impossible, “he said.” What should I do?
She specializes in the most dangerous pregnancies. Uncommon complications for most midwives are not uncommon for her. She wants to stay in Tennessee, but she isn’t sure the new law will make it too risky. This is Akers’ greatest fear: Doctors will move to states where they won’t face the threat of jail for doing their job.
“Tennessee women need you here,” she said.
Her sister survived a high-risk pregnancy with twins because she received top-notch care, she believes. She thinks all her neighbors deserve the same. Tennessee is already at the top of the list of states with abysmal maternal mortality rates and fears that this will make matters worse.
“We have all risked our lives for two years for a pandemic. I’m not really thrilled to risk my freedom and my freedom to care for patients here when it became very clear that I am no longer welcome, “she said,” even though I know people need me. “
He wants to stay. He loves his practice and his patients, he told Akers.
“But I just don’t know.”