Image: The Fred D. Thompson federal courthouse Image Credit: GSA.gov
***Note from The Tennessee Conservative: This article reprinted here for informational purposes only.
By Anita Wadhwani [The Tennessee Lookout -CC BY-NC-ND 4.0] –
Tennessee is appealing an order by a federal judge that permanently blocked a portion of state law that made it a crime to help minors obtain an out-of-state abortion.
The so-called 2024 “abortion trafficking of a minor” law created a misdemeanor offense for an adult who “intentionally recruits, harbors, or transports a pregnant unemancipated minor” for an abortion or to obtain abortion-inducing drugs for a minor. The law does not apply to parents, guardians and those with their written permission.
The law was challenged in July 2024 by state Rep. Aftyn Behn, a Nashville Democrat and social worker, who has publicly advocated for abortion rights, and Rachel Welty, a Nashville attorney who describes herself as an “advocate for safe and healthy access to abortion care.”
In July, Senior United States Circuit Judge Julia Gibbons issued a decision permanently enjoining the recruitment portion of the law. Gibbons concluded it was a clear violation of First Amendment rights, noting in her decision that the law criminalizes only one side of speech about abortion.
The law does not define the term “recruit.” Lawyers for the state argued it meant “a targeted inducement of a minor for a specific purpose — obtaining an elective abortion without her parent’s or guardian’s consent.” Behn and Welty argued it meant “encouragement, persuasion and ‘put(ting) out the word’ that an option was available.”
Either way, Gibbons concluded, the provision was unconstitutional.
Tennessee’s near total abortion ban, which took effect in 2022, has meant those seeking the procedure have had to travel to states where it remains legal.
“Tennessee cannot criminalize ‘disseminating information about an activity that is legal in another state,’ wrote Gibbons, who sits on 6th U.S. Circuit Court of Appeals but presided over the Nashville case after several other federal judges recused themselves from the case.
The fate of the recruitment portion of the law now rests with the 6th Circuit after a notice of appeal was filed by the Tennessee Attorney General in late August.
Nashville attorneys Daniel Horwitz, Melissa Dix and Sarah Martin, who represent the two women who filed the lawsuit, have also filed a “cross appeal,” citing in legal filings precedent for using such appeals as a “backup plan” in case the judgement in the case is reversed.
