2023 Tennessee Code › Title 39 - CRIMINAL OFFENSES (§§ 39-1-101 — 39-17-1812) › Chapter 15 - OFFENSES AGAINST THE FAMILY (§§ 39-15-101 — 39-15-514) › Part 2 - ABORTION (§§ 39-15-NEW — 39-15-219) › Section 39-15-215 - Section definitions - Physician requirements prior to pregnant woman giving informed consent to have abortion - Obstetric ultrasound - Affirmative defense of medical emergency - Violations - Report to board of medical examiners - Severability - Intent

(a)
As used in this section:
(1)
"Abortion" has the same meaning as defined in §
39-15-211
;
(2)
"Auscultate" means to examine by listening for sounds made by internal organs of the fetus, including a fetal heartbeat, in accordance with standard medical practice utilizing current medical technology and methodology;
(3)
"Gestational age" or "gestation" has the same meaning as defined in §
39-15-211
;
(4)
"Medical emergency" has the same meaning as defined in §
39-15-211
; provided, that a medical emergency does not include a claim or diagnosis related to the woman's mental health or a claim or diagnosis that the woman will engage in conduct which would result in her death or substantial and irreversible impairment of a major bodily function;
(5)
"Obstetric ultrasound" or "ultrasound" means the use of ultrasonic waves for diagnostic or therapeutic purposes, specifically to monitor a developing fetus; and
(6)
"Ultrasound technician" means a person at least eighteen (18) years of age who:
(A)
Has earned a technical certificate from a sonography program accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or Canadian Medical Association (CMA);
(B)
Is currently certified by the American Registry for Diagnostic Medical Sonography (ARDMS) in the specialty in which the person is currently practicing;
(C)
Is currently certified by the American Registry of Radiologic Technologists (ARRT) in sonography;
(D)
Is in the process of applying for registration with the ARDMS, provided that the applicant satisfies the requirements for registration within ninety (90) days of becoming employed as a sonographer; or
(E)
Is in the process of applying for registration with the ARRT, provided that the applicant satisfies the requirements for registration within ninety (90) days of becoming employed as a sonographer.
(b)
Prior to a pregnant woman giving informed consent to having an abortion, as required by §
39-15-202
, the physician who is performing or inducing, or attempting to perform or induce, an abortion, shall:
(1)
Determine the gestational age of the unborn child in accordance with generally accepted standards of medical practice;
(2)
Inform the pregnant woman the gestational age of the unborn child;
(3)
Perform an obstetric ultrasound in accordance with generally accepted standards of medical practice using current medical technology and methodology applicable to the gestational age of the unborn child and reasonably calculated to determine whether a fetal heartbeat exists;
(4)
Auscultate the fetal heartbeat of the unborn child, if any, so that the pregnant woman may hear the heartbeat if the heartbeat is audible;
(5)
Provide a simultaneous explanation of what the ultrasound is depicting, which must include the presence and location of the unborn child within the uterus, the dimensions of the unborn child, the presence of external members and internal organs if present and viewable, the number of unborn children depicted, and, if the ultrasound image indicates that fetal demise has occurred, inform the woman of that fact;
(6)
Display the ultrasound images so that the pregnant woman may view the images;
(7)
Record in the pregnant woman's medical record the presence or absence of a fetal heartbeat, the method used to test for the fetal heartbeat, the date and time of the test, and the estimated gestational age of the unborn child; and
(8)
Obtain from the pregnant woman prior to performing or inducing, or attempting to perform or induce, an abortion, a signed certification that the pregnant woman was presented with the information required to be provided under this subsection (b), that the pregnant woman viewed the ultrasound images or declined to do so, and that the pregnant woman listened to the heartbeat if the heartbeat was audible or declined to do so. The signed certification must be in addition to any other documentation requirements under this part and must be on a form prescribed by the commissioner of health and be retained in the woman's medical record.
(c)
(1)
The physician who is to perform or induce, or attempt to perform or induce, an abortion may delegate the responsibility to perform the obstetric ultrasound to an ultrasound technician, provided that the ultrasound technician is qualified and permitted by law to perform an obstetric ultrasound that complies with the requirements of subsection (b). An ultrasound technician performing an obstetric ultrasound under this subdivision (c)(1) shall perform the obstetric ultrasound in a manner that complies with subsection (b), and the physician may rely on the signed certification obtained by the qualified technician under subdivision (b)(8) to establish that an ultrasound was performed in compliance with this section, unless the physician knows, or in the exercise of reasonable care should know, that an ultrasound was not performed in accordance with this section.
(2)
The physician who is to perform or induce, or attempt to perform or induce, an abortion may accept a certification from a referring physician that the referring physician has performed an obstetric ultrasound that complies with the requirements of subsection (b). The referring physician performing an obstetric ultrasound under this subdivision (c)(2) shall perform the obstetric ultrasound in a manner that complies with subsection (b), and the physician may rely on the signed certification obtained by the referring physician under subdivision (b)(8) to establish that an ultrasound was performed in compliance with this section, unless the physician knows, or in the exercise of reasonable care should know, that an ultrasound was not performed in accordance with this section.
(d)
When the ultrasound images and heartbeat sounds are provided to and reviewed with the pregnant woman, this section shall not be construed to prevent the pregnant woman from averting her eyes from the ultrasound images or requesting the volume of the heartbeat be reduced or turned off if the heartbeat is audible. The physician or ultrasound technician performing the ultrasound shall be permitted to comply with the request of the pregnant woman. The physician, the ultrasound technician, and the pregnant woman shall not be subject to any penalty if the pregnant woman refuses to look at the displayed ultrasound images or to listen to the heartbeat if the heartbeat is audible.
(e)
(1)
Subject to compliance with subdivision (e)(2), it is an affirmative defense to criminal prosecution for a violation of a provision of this section that, in the physician's reasonable medical judgment, a medical emergency prevented compliance with the provision.
(2)
In order for the affirmative defense in subdivision (e)(1) to apply, a physician who performs or induces, or attempts to perform or induce, an abortion because of a medical emergency must comply with each of the following conditions unless the medical emergency also prevents compliance with the condition:
(A)
The physician who performs or induces, or attempts to perform or induce, the abortion certifies in writing that, in the physician's good faith, reasonable medical judgment, based upon the facts known to the physician at the time, compliance with the provision was prevented by a medical emergency;
(B)
The physician certifies in writing the available methods or techniques considered and the reasons for choosing the method or technique employed;
(C)
If the unborn child is presumed to be viable under §
39-15-211
or determined to be viable under §
39-15-212
, the physician performs or induces, or attempts to perform or induce, the abortion in a hospital. The hospital must have appropriate neonatal services for premature infants unless there is no hospital within thirty (30) miles with neonatal services and the physician who intends to perform or induce the abortion has admitting privileges at the hospital where the abortion is to be performed or induced;
(D)
If the unborn child is presumed viable under §
39-15-211
or determined to be viable under §
39-15-212
, the physician who performs or induces, or attempts to perform or induce, the abortion terminates or attempts to terminate the pregnancy in the manner that provides the best opportunity for the unborn child to survive, unless that physician determines, in the physician's good faith medical judgment, based upon the facts known to the physician at the time, that the termination of the pregnancy in that manner poses a significantly greater risk of the death of the pregnant woman or a significantly greater risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion; and
(E)
If the unborn child is presumed viable under §
39-15-211
or determined to be viable under §
39-15-212
, the physician who performs or induces, or attempts to perform or induce, the abortion has arranged for the attendance in the same room in which the abortion is to be performed or induced, or attempted to be performed or induced, at least one (1) other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn child immediately upon the child's complete expulsion or extraction from the pregnant woman.
(f)
Performing or inducing, or attempting to perform or induce, an abortion in violation of the requirements of this section is a Class C felony.
(g)
A violation of subsection (c) by an ultrasound technician or referring physician whose performance of an ultrasound pursuant to subsection (c) is relied upon by a physician in performing or inducing, or attempting to perform or induce, an abortion is a Class E felony.
(h)
A pregnant woman upon whom an abortion is performed or induced, or attempted to be performed or induced, in violation of this section is not guilty of violating this section or attempting to commit or conspiring to commit a violation of this section.
(i)
When a physician is criminally charged with a violation of this section, the physician shall report the charge to the board of medical examiners in writing within seven (7) calendar days of acquiring knowledge of the charge. The report must include the jurisdiction in which the charge is pending, if known, and must also be accompanied by a copy of the charging documents, if available. A district attorney general shall promptly notify the board of medical examiners when a physician is charged with a violation of this section.
(j)
If any provision or provisions of this section or the application thereof to any person, circumstance, or period of gestational age is found to be unenforceable, unconstitutional, or invalid by a court of competent jurisdiction, the same is hereby declared to be severable and the remainder of the section shall remain effective. The general assembly hereby declares that it would have enacted this section and each of its provisions, even if any provision of this section or the application thereof to any person, circumstance, or period of gestational age is later found to be unenforceable, unconstitutional, or invalid.
(k)
(1)
It is the specific intent of the general assembly in this section to exercise to the greatest extent permitted by law the legitimate, substantial, and compelling state interest in protecting maternal health, and in preserving, promoting, and protecting life and potential life throughout pregnancy by enacting more protective requirements than provided for under this part as it existed prior to July 13, 2020.
(2)
When this section is in direct conflict with this part as it existed prior to July 13, 2020, the more protective requirements of this section control over any less protective provision in this part. This section shall not be construed as a repeal, either express or implied, of any provision of this part as it existed prior to July 13, 2020.
(3)
The general assembly specifically intends that this part as it existed prior to July 13, 2020, shall remain and be enforceable if, and for so long as, any provisions of this section, or any part or parts thereof, are enjoined or otherwise barred by a court of competent jurisdiction.
(4)
This section does not repeal or modify in any way §
39-15-213
, as enacted by chapter 351 of the Public Acts of 2019, which shall control upon becoming effective. This section shall remain and be enforceable if, and for so long as, any provisions of §
39-15-213
, or any part or parts thereof, are enjoined or otherwise barred by a court of competent jurisdiction.
Added by 2020 Tenn. Acts, ch. 764, s 2, eff. 7/13/2020.