If Tennessee broadened the fetal-victim definition in assault and homicide statutes to include nonviable fetuses, would that interfere with legal abortion?

Plain-English summary

State Representative Jeanne Richardson asked whether HB 3495/SB 3699 of the 106th General Assembly, if enacted, would interfere with the statutes that allowed legal abortion in Tennessee. The bill would have amended Tenn. Code Ann. §§ 39-13-107(a) and 39-13-214(a), the two criminal-code provisions identifying who can be a victim of assaultive offenses or of criminal homicide. At the time, the statutes recognized only a "viable fetus of a human being." The bill would have expanded the definition to include any fetus carried by a pregnant victim, "regardless of viability of the fetus."

The AG said no. The bill amended subsection (a) of each statute, the part that defines fetal victims for criminal purposes. It did not touch subsection (c) of either statute. Subsection (c) is the abortion savings clause. It reads in identical language across both statutes: "It is the legislative intent that this section shall in no way affect abortion, which is legal in Tennessee. This section shall in no way apply to acts that are committed pursuant to usual and customary standards of medical practice during diagnostic or therapeutic treatment."

Because subsection (c) would remain on the books even after the proposed expansion of subsection (a), the criminal liability for harming a fetus would not reach a doctor performing a legal abortion or a patient seeking one. The savings clause expressly carves out abortion and medical-practice activity.

The AG cross-referenced its own earlier opinion 10-69 (May 20, 2010), which had concluded that SB 3699 was constitutionally defensible. That opinion was attached to the new one.

Currency note

This opinion was issued in 2010, before Dobbs v. Jackson Women's Health Organization. Tennessee abortion law has since changed substantially. Subsequent statutory amendments, court decisions, or later AG opinions have changed the current legal landscape considerably. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or statement about what is or is not legal abortion in Tennessee.

Background and statutory framework

Tennessee's fetal-victim framework lives in the criminal code, not the abortion statutes. Two parallel provisions define who counts as a victim. § 39-13-107 covers the general definition of "another" for assaultive offenses (assault, aggravated assault, certain homicide-adjacent crimes). § 39-13-214 does the same work for the homicide chapter. In both, the legislature added "viable fetus of a human being" as a category of victim, but cabined that with a subsection (c) that expressly preserved legal abortion and medical practice.

HB 3495/SB 3699 of the 106th General Assembly proposed to delete the word "viable" from each statute's subsection (a), so that any fetus carried by a pregnant victim would qualify regardless of viability. The bill left subsections (b) and (c) of each statute untouched. The AG's analysis turned on the survival of subsection (c).

The legislative-intent statement in subsection (c) was unambiguous: "this section shall in no way affect abortion." That phrasing fixed legal abortion as outside the reach of the section, regardless of how subsection (a) defined the victim category. The customary-medical-practice carve-out further insulated diagnostic and therapeutic care.

The AG's earlier opinion (10-69, May 20, 2010) had addressed the constitutional defensibility of SB 3699 directly. Opinion 10-110 reinforced the bottom line: the constitutional defense and the abortion savings clause both held.

Common questions

Q: Did this opinion say anything about whether the underlying bill should pass?
A: No. The AG opinion addressed a narrower question: assuming enactment, would the bill interfere with legal abortion. The answer was no.

Q: How would the bill have changed prosecutions for harming a pregnant victim?
A: Before the bill, a defendant who attacked a pregnant victim could be charged with crimes against the fetus only if the fetus was viable. The bill would have removed the viability cutoff, so attacks earlier in pregnancy could be charged.

Q: Why did the savings clause matter so much?
A: Without subsection (c), the broader fetal-victim definition might have reached medical procedures. Subsection (c) drew an express line: this section does not affect abortion, and does not reach acts within usual and customary medical practice.

Q: Did the bill ultimately become law?
A: That question concerns later legislative history; consult the 106th General Assembly records and Tennessee session laws for the final disposition. The opinion addressed the bill as proposed.

Q: How does this opinion read in light of later changes to Tennessee abortion law?
A: Tennessee abortion law has changed substantially since 2010, particularly after Dobbs. The savings-clause analysis in this opinion does not describe the current state of Tennessee abortion law. Always check current statutes before drawing any operational conclusion.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-13-107(a), (c) (fetal-victim definition and abortion savings clause for assaultive offenses)
• Tenn. Code Ann. § 39-13-214(a), (c) (fetal-victim definition and abortion savings clause for criminal homicide)

Pending legislation discussed:

• HB 3495 / SB 3699, 106th Tennessee General Assembly

Prior AG opinions:

• Op. Tenn. Att'y Gen. 10-69 (May 20, 2010) (constitutional defensibility of SB 3699)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-110.pdf

Original opinion text

Fetuses as Victims of Criminal Offenses

QUESTION

If enacted into law, would the provisions of HB 3495/SB 3699 of the 106th General Assembly, which would have amended Tenn. Code Ann. §§ 39-13-107(a) and 39-13-214(a) to expand the category of fetuses that may be considered victims of criminal assaultive offenses and of criminal homicide, interfere with any statutory provision that now allows for legal abortion?

OPINION

No. The bill would leave in place existing statutory provisions, i.e., Tenn. Code Ann. §§ 39-13-107(c) and 39-13-214(c), which expressly provide that neither statute affects legal abortion.

ANALYSIS

House Bill 3495/Senate Bill 3699 would have amended Tenn. Code Ann. §§ 39-13-107(a) and 39-13-214(a), two sections of the criminal code that establish who may be considered a victim of an assaultive offense or of criminal homicide. Presently, the sections recognize that a "viable fetus of a human being" may be considered to have been a victim of these offenses under certain circumstances.

HB 3495/SB 3699 would amend the above sections by providing that when at the time of the criminal act the victim was pregnant, her human fetus, "regardless of viability of the fetus," may also be considered to have been a victim of the offense. HB 3495/SB 3699, §§ 1, 2.

While the bill's provisions would clearly broaden the category of fetuses that could be considered to be victims of criminal assault or of criminal homicide, we do not believe that the provisions would impact other statutes that now allow for legal abortion in Tennessee. Existing provisions of both Tenn. Code Ann. § 39-13-107 and § 39-13-214 expressly state that

[i]t is the legislative intent that this section shall in no way affect abortion, which is legal in Tennessee. This section shall in no way apply to acts that are committed pursuant to usual and customary standards of medical practice during diagnostic or therapeutic treatment.

Tenn. Code Ann. §§ 39-13-107(c), 39-13-214(c) (emphasis added). Because HB 3495/SB 3699 would leave these existing statutory provisions in place, the amendments contained in the bill would have no effect upon legal abortion in Tennessee.

[Footnote: In Op. Tenn. Att'y Gen. 10-69 (May 20, 2010), this Office concluded that SB 3699 was constitutionally defensible. A copy of that opinion is attached.]

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
The Honorable Jeanne Richardson
State Representative
26 Legislative Plaza
Nashville, Tennessee 37243-0189