If Tennessee banned abortion coverage on the ACA exchange, would that ban also cover IUDs and the morning-after pill?

Plain-English summary

When Congress passed the Affordable Care Act in March 2010, it included a state opt-out provision (§ 1303(a), as amended by § 10104(c)) allowing any state to prohibit qualified health plans sold on its insurance exchange from offering abortion coverage. Tennessee's SB 2686/HB 2681 was the implementing legislation: no health care plan required to be established in Tennessee through an exchange could offer coverage for abortion services. The bill defined "abortion" by reference to the existing Tennessee criminal-code definition at Tenn. Code Ann. § 39-15-201(a)(1).

Sen. Marrero asked the AG to clarify the scope of the ban. Specifically, would the ban also block insurance coverage of IUDs, emergency contraception, and regular birth control pills, all of which can in some circumstances prevent a fertilized egg from implanting in the uterine lining?

The AG concluded no. Tennessee's statutory definition of "abortion" in § 39-15-201(a)(1) is the "administration to any woman pregnant with child... of any medicine, drug, or substance whatever, or the use or employment of any instrument, or other means whatever, with the intent to destroy the child, thereby destroying the child before the child's birth." Two textual features of that definition matter. First, the woman must be "pregnant with child." Under the generally accepted medical definition (which the AG had already relied on in Op. Tenn. Att'y Gen. 01-030 (March 7, 2001)), pregnancy begins at implantation, approximately 12 to 16 days after fertilization. A method of birth control that prevents implantation, therefore, prevents pregnancy and is not an "abortion" within the meaning of the statute. Second, the action must be taken with the intent to destroy the child. Contraceptive use, by definition, is intended to prevent pregnancy, not to destroy an existing one.

The AG's earlier opinion (01-030) had walked through this analysis for mifepristone (RU-486), the abortifacient drug. Mifepristone blocks progesterone and causes the uterine lining to be expelled. Used before implantation, mifepristone functions as a contraceptive (no pregnancy to terminate). Used after implantation, it is an abortion under the statute. So mifepristone is a case-by-case answer; the timing of administration controls.

Translated to the SB 2686/HB 2681 question: the abortion-coverage ban applies to procedures and drugs used after implantation with intent to terminate a pregnancy. It does not reach IUDs (which primarily prevent fertilization and may prevent implantation), emergency contraception like Plan B (which prevents ovulation or implantation), or regular oral contraceptives (which prevent ovulation and may prevent implantation). All of those can still be covered by qualified health plans sold on the Tennessee exchange.

The opinion does not address whether the ban itself is constitutionally permissible. That is a separate question. Roe v. Wade and Planned Parenthood v. Casey were the governing federal precedents in 2010; the opinion focuses only on the statutory scope question.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legal landscape around abortion and contraception coverage has changed substantially since 2010. Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe and Casey and returned the issue to the states. Tennessee's trigger law (Public Chapter 1046 of 2019) took effect after Dobbs and bans abortion in nearly all circumstances, with criminal liability for providers. The statutory definition of "abortion" in § 39-15-201(a)(1) has been amended and is now read against a wholly different regulatory background. The Affordable Care Act exchange remains operative, but the state opt-out provision now overlaps with state bans of much broader scope. Anyone advising on current Tennessee abortion-coverage or contraception-coverage questions should look at the current Tennessee criminal code, current federal contraception-mandate litigation, and current Sixth Circuit case law, not at this 2010 framework.

Common questions

Q: What is the state opt-out under the Affordable Care Act?
A: Section 1303(a)(1) of the ACA, as amended by § 10104(c), allows a state to enact a law prohibiting qualified health plans offered on its exchange from offering abortion coverage. If a state does not opt out, plans on its exchange can offer abortion coverage but cannot use federal funds (tax credits, cost-sharing reductions) to pay for abortions for which federal funding is otherwise prohibited; the plans have to collect separate payments from enrollees and segregate the funds.

Q: Does Tennessee's statutory definition of "abortion" cover contraception?
A: No. The definition in Tenn. Code Ann. § 39-15-201(a)(1) requires the administration of a drug or instrument "to any woman pregnant with child" with the intent to destroy the child. Pregnancy, under accepted medical definitions, begins at implantation. Contraceptives that prevent implantation prevent pregnancy from occurring; they do not terminate an existing pregnancy.

Q: What about IUDs?
A: An IUD's primary mechanism is to prevent fertilization (by interfering with sperm motility and viability). To the extent an IUD also prevents implantation of an already-fertilized egg, it still acts before pregnancy has begun under the medical definition. So IUD use does not fit the statutory definition of "abortion."

Q: What about Plan B and other emergency contraception?
A: Plan B (levonorgestrel) works primarily by delaying ovulation and may also prevent implantation. Either way, it acts before pregnancy has begun under the medical definition, so it is not an "abortion" under § 39-15-201(a)(1). The AG opinion explicitly says forms of birth control that may result in the expulsion of a fertilized egg before implantation are not "abortion" under the Tennessee definition.

Q: What about mifepristone (RU-486)?
A: It depends on when it is administered. Used before implantation, mifepristone prevents pregnancy and is contraceptive. Used after implantation, mifepristone terminates an existing pregnancy and is an "abortion" under the statute. The AG opinion 01-030 from 2001 set out this case-by-case analysis, and the 2010 opinion reaffirms it.

Q: Does this opinion mean Tennessee couldn't ban contraception coverage on the exchange?
A: The opinion does not address that question. It only construes the scope of SB 2686/HB 2681 as drafted, which by its terms references the criminal-code definition of "abortion." A different bill that defined "abortion" more broadly (to include pre-implantation methods) would raise different statutory and constitutional questions. The AG opinion takes the bill as written.

Q: Why does the medical definition of pregnancy matter so much?
A: Because the statute uses the phrase "any woman pregnant with child." Courts construe statutes against their accepted technical or medical background unless the legislature has expressly redefined the term. Tennessee's definition of "abortion" has always been read against the accepted-medical-practice baseline that pregnancy begins at implantation.

Background and statutory framework

The federal opt-out provision. ACA § 1303(a)(1), as amended by § 10104(c), states: "A State may elect to prohibit abortion coverage in qualified health plans offered through an Exchange in such State if such State enacts a law to provide for such prohibition." This is a permissive grant of state authority over coverage in the state's federally-coordinated exchange. If a state does not opt out, qualified health plans on its exchange may voluntarily offer abortion coverage but cannot use federal funds for it (under § 1303(b)).

The Tennessee bill. SB 2686/HB 2681 would have added a new section to Title 56 of the Tennessee Code reading: "No health care plan required to be established in this state through an exchange pursuant to federal health care reform legislation enacted by the 111th Congress shall offer coverage for abortion services. For purposes of this section, 'abortion' has the same meaning as defined in § 39-15-201."

The statutory definition. Tenn. Code Ann. § 39-15-201(a)(1) defines "abortion" as: "[T]he administration to any woman pregnant with child, whether the child be quick or not, of any medicine, drug, or substance whatever, or the use or employment of any instrument, or other means whatever, with the intent to destroy the child, thereby destroying the child before the child's birth."

The textual hooks the AG focused on are "any woman pregnant with child" and "with the intent to destroy the child." The first hook ties the statute to the medical definition of pregnancy (which begins at implantation). The second hook ties the statute to intent (destroying a pregnancy, not preventing one).

The earlier mifepristone opinion. Op. Tenn. Att'y Gen. 01-030 (March 7, 2001) addressed whether mifepristone was an "abortion" under the same definition. The 2001 opinion relied on the generally accepted medical definition: pregnancy begins at implantation, approximately 12 to 16 days after fertilization. Mifepristone blocks progesterone, causing the uterine lining to be expelled. Used before implantation, the expulsion happens before pregnancy occurs, so it is contraceptive. Used after implantation, the expulsion terminates an established pregnancy, so it is an "abortion." The 2010 opinion adopts the same framework.

Application to common contraceptives.

• IUDs: primarily prevent fertilization; secondarily may prevent implantation; never operate post-implantation. Not "abortion."
• Emergency contraception (Plan B, ella): delay ovulation and may prevent implantation. Not "abortion."
• Regular oral contraceptives: primarily prevent ovulation; may prevent implantation. Not "abortion."
• Mifepristone: case-by-case. Pre-implantation use is contraceptive; post-implantation use is abortion.

The scope-of-the-bill conclusion. Because the bill incorporates the existing statutory definition of "abortion" by reference, its prohibition reaches only the methods that constitute "abortion" under § 39-15-201(a)(1). Methods that operate before implantation are categorically outside the prohibition. Insurance coverage of those methods is unaffected by the opt-out bill.

What the opinion does not decide. The AG did not address whether the bill is constitutionally valid (under the Roe/Casey framework as it stood in 2010), whether the bill is preempted by other federal coverage requirements (such as ACA's contraceptive-coverage mandate at issue in later cases like Burwell v. Hobby Lobby Stores, Inc.), or whether the criminal definition of "abortion" should be read into the insurance-regulation title differently than it is read into the criminal title. The opinion stays narrowly on statutory interpretation.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-15-201(a)(1) (definition of abortion)
• Tenn. Code Ann. § 37-10-302(1)
• Patient Protection and Affordable Care Act, Pub. L. No. 111-148 § 1303 (state opt-out)
• Patient Protection and Affordable Care Act, Pub. L. No. 111-148 § 10104(c)
• Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152

Related Tennessee AG opinions:

• Op. Tenn. Att'y Gen. 01-030 (March 7, 2001) (mifepristone analysis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-054.pdf

Original opinion text

April 19, 2010

Opinion No. 10-54

Coverage of Abortion Services

QUESTION

Do the provisions of SB 2686/HB 2681 apply to forms of birth control that may result in the expulsion of a fertilized egg before it is implanted in the uterine lining (IUD's, emergency contraception, and sometimes regular birth control pills)?

OPINION

In our opinion, the definition of "abortion" that is used in SB 2686/HB 2681 would not apply to such forms of birth control. However, as we noted in a prior opinion, on a case-by-case basis, administration of an abortifacient such as mifepristone could constitute an "abortion" as defined under Tenn. Code Ann. § 39-15-201(a)(1) if it were used after implantation of an embryo in the uterine lining.

ANALYSIS

Senate Bill 2686/House Bill 2681 would amend Title 56 of the Tennessee Code by adding the following new section:

No health care plan required to be established in this state through an exchange pursuant to federal health care reform legislation enacted by the 111th Congress shall offer coverage for abortion services. For purposes of this section, "abortion" has the same meaning as defined in § 39-15-201.

The bill is intended to implement a "State opt-out" provision contained in the recently enacted federal Patient Protection and Affordable Care Act, Public Law No. 111-148 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152 (collectively referred to as the "federal Act"). Section 1303(a) of the federal Act, as amended by section 10104(c), provides, in pertinent part:

(a) State Opt-Out of Abortion Coverage - -

(1) In general. A State may elect to prohibit abortion coverage in qualified health plans offered through an Exchange in such State if such State enacts a law to provide for such prohibition.

Senate Bill 2686/House Bill 2681 defines the abortion coverage that it would prohibit qualified health plans from offering in a Tennessee exchange by referencing the definition of "abortion" contained in Tenn. Code Ann. § 39-15-201. That definition of "abortion" is:

[T]he administration to any woman pregnant with child, whether the child be quick or not, of any medicine, drug, or substance whatever, or the use or employment of any instrument, or other means whatever, with the intent to destroy the child, thereby destroying the child before the child's birth.

Tenn. Code Ann. § 39-15-201(a)(1).

This definition of abortion is very broad. In a previous opinion, Op. Tenn. Att'y Gen. 01-030 (March 7, 2001), we considered its applicability to use of an abortifacient such as mifepristone, also known as RU-486. We noted that by the generally accepted medical definition, pregnancy begins at the completion of implantation of the embryo in the uterine lining, which is accomplished approximately 12 to 16 days after fertilization. Termination of a pregnancy before this point is not classified as an abortion under generally accepted medical practice. Mifepristone can block the naturally produced hormone progesterone, thus causing the expulsion of the uterine lining. If this expulsion takes place before implantation occurs, a pregnancy does not occur. Under such circumstances, the use of mifepristone would be classified as a contraceptive rather than an "abortion" within the meaning of Tenn. Code Ann. § 39-15-201(a)(1). However, if administered after the embryo has been implanted in the uterine lining, the use of mifepristone serves to cause an abortion. We concluded that whether the use of mifepristone constitutes an "abortion" as defined under Tenn. Code Ann. §§ 37-10-302(1) and 39-15-201(a)(1) would be determined on a case-by-case basis, and would be based on whether the drug were used before or after implantation of the embryo. Our opinion also noted that the definition of "abortion" contained in Tenn. Code Ann. § 39-15-201(a)(1) plainly requires that the action to terminate a pregnancy be taken intentionally for the purpose of terminating the pregnancy.

We therefore conclude that the definition of "abortion" that is used in SB 2686/HB 2681 would not apply to forms of birth control that may result in the expulsion of a fertilized egg before it is implanted in the uterine lining. However, on a case-by-case basis, administration of an abortifacient such as mifepristone could constitute an "abortion" as defined under Tenn. Code Ann. § 39-15-201(a)(1) if it were used after implantation of an embryo in the uterine lining.

[Footnote 1: If a State does not elect the opt-out provision, qualified health plans offered through its exchange may not be required to provide coverage of any abortion services as part of their essential health benefits but may voluntarily choose to do so. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1303(b)(1)(A), 10104(c) (2010). If a qualified health plan chooses to provide coverage for abortions for which federal funding is prohibited, it may not use federal funds or tax credits and cost-sharing reductions otherwise available under the federal Act to pay for such services, and must ensure compliance with these prohibitions by collecting separate payments from plan enrollees and segregating funds. Id. §§ 1303(b)(1), (2), 10104(c).]

[Footnote 2: Black's Law Dictionary (8th ed. 2004) defines an abortifacient as "[a] drug, article, or other thing designed or intended to produce an abortion."]

[Footnote 3: Our opinion cited "RU-486: Legal and Policy Issues Confronting the Food and Drug Administration," Csilla Muhl, Journal of Legal Medicine, June 1993, for the medical information provided therein.]

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:

The Honorable Beverly Robison Marrero
State Senator
War Memorial Building, Suite 312
Nashville, Tennessee 37243-0189