Fact check: Tennessee didn’t ban Plan B morning-after pill

By Daniel Dale, CNN

A former Democratic congressional candidate went viral on Twitter over the weekend with a false claim that Tennessee has banned Plan B, a pregnancy-preventing emergency contraceptive known as a “morning-after pill.”

Pam Keith’s inaccurate tweet came five days after Politico revealed a February draft opinion in which a Supreme Court majority appeared poised to overturn the landmark Roe v. Wade abortion decision of 1973. The news has raised questions about both the state-by-state future of abortion rights and whether some conservative states might try to restrict some forms of contraception.

“Tennessee just banned Plan B and made it a crime punishable by a $50,000 fine to order it,” Keith, a lawyer who ran unsuccessfully in Florida for the US Senate in 2016 and the House of Representatives in 2018 and 2020, tweeted on Saturday.

Facts First: Keith’s claim is wrong in two significant ways. First, Tennessee has not banned Plan B or created any fine for residents who order it. Rather, Tennessee law bans people and businesses from providing abortion medication by mail, courier or delivery; Plan B, which prevents pregnancy in the first place, is not abortion medication. Second, Tennessee law doesn’t allow people to be fined for ordering even abortion medication. The bill signed by Gov. Bill Lee last week makes it a felony, punishable by a fine up to $50,000, for providers of abortion medication to “intentionally, knowingly or recklessly” break the law against dispensing that medication by mail, courier or delivery — but the law explicitly exempts patients from penalties.

Keith’s tweet had been retweeted more than 26,000 times and shared in an additional 12,000-plus quote tweets as of Monday afternoon. Keith deleted it after CNN reached her by phone and asked if she planned to delete or issue a correction.

“I will admit my interpretation of it was mistaken,” Keith said after CNN explained what the law does say. She also said: “I didn’t claim to be a doctor, nor do I claim to be in Tennessee. … I, in no way and no shape, had claimed to an expert on Tennessee’s emerging law.”

Before Keith’s deletion, the claim had also been debunked by The Tennessean newspaper, by other journalists and by various Twitter users — but it had also alarmed some Tennessee residents.

Nina Gurak, policy director at Healthy and Free Tennessee, an organization that fights for “reproductive freedom,” said in an email that misinformation about the new law had caused “a lot of confusion” among Tennesseans in their network, prompting the organization to issue a clarifying statement on Instagram.

What the Tennessee law does say

Even before the bill that Lee signed last week, Tennessee law required abortion medication to be dispensed only by doctors and only in person, preventing distribution via telehealth appointment or by pharmacists. The new law increases the potential penalties for violators — but it says, “A criminal penalty shall not be assessed against a patient upon whom a chemical abortion is attempted or performed.”

Gurak said: “The new law does very little except enhance criminal penalties for providers.”

Gurak added that exempting abortion patients from penalties doesn’t prevent them from potentially being pressured into providing information on the providers of the medication they obtained. Regardless, the law’s text makes it clear that it does not impose restrictions on Plan B.

The law defines “abortion-inducing drug” — medication that Tennessee requires be distributed by doctors in person — to mean medication “provided with the intent of terminating the clinically diagnosable pregnancy of a patient, with knowledge that the termination will, with reasonable likelihood, cause the death of the unborn child.”

Plan B is provided to prevent a pregnancy, not to terminate a pregnancy, and it is intended to be taken 72 hours or less from unprotected sex or a contraceptive accident, before pregnancy can be clinically diagnosed.

The law also says that “abortion-inducing drug” includes “the off-label use of drugs known to have abortion-inducing properties that are prescribed specifically with the intent of causing an abortion, such as mifepristone, misoprostol, and methotrexate.” It does not mention levonorgestrel, the medication popularly branded as Plan B, which is not prescribed to cause abortion.

The new law takes effect at the beginning of 2023. Tennessee also has a so-called trigger law that would ban most abortions as of 30 days after Roe v. Wade was overturned, with an exception for the life of the patient but not for pregnancies created through rape or incest.

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