A 2024 Tennessee law that would make it a crime to help minors travel out of state to get an abortion was blocked in July because of its violation of the First Amendment. Now the state is appealing the ruling in an effort to put the “abortion trafficking” law back into effect.
State Rep. Aftyn Behn (D-Nashville), along with abortion fund member and attorney Rachel Welty, brought the lawsuit in July 2024 against the district attorneys general for Middle Tennessee. The pair argued the law’s language infringed on their First Amendment rights to share information about abortion access. The law’s terminology criminalizes anyone who “intentionally recruits, harbors or transports a pregnant unemancipated minor,” and “recruit” was not defined. Those charged would face a class-A misdemeanor for “wrongful death of an unborn child,” which could result in one year of jail time. The law did not apply to parents or to adults with written parental permission.
Because of Tennessee’s nearly total abortion ban, very few abortion procedures happen in the state. The “abortion trafficking” law was temporarily halted in September 2024, and permanently blocked in July.
Plaintiffs allege violation of First Amendment rights, ask attorneys general not to enforce
Senior United States Circuit Judge Julia Gibbons ruled that the recruitment portion of the law was a violation of the First Amendment right to free speech. A similar “abortion trafficking” law in Idaho was partially blocked in December after a legal battle, allowing Idahoans to speak to pregnant minors about abortion health care.
Behn in July also announced her run for Tennessee’s 7th Congressional District. Early voting in the special primary election for that seat begins this week.
“Instead of using the power of his office to lower grocery prices, [Tennessee Attorney General Jonathan Skrmetti] is spending resources appealing a case we know they are 99 percent going to lose,” Behn tells the Scene in a statement. “You can’t trample the First Amendment just because you don’t like what people are saying.”
In August, Skrmetti’s office filed subpoenas for broad abortion information from Tennessee hospitals Vanderbilt University Medical Center, Heritage Medical Associates, Women’s Group of Franklin and Ascension Saint Thomas Medical Partners UT OB-GYN Center. The move is part of another ongoing lawsuit brought by three Tennessee women who say the state’s abortion ban endangered their lives.
Attorneys Daniel Horowitz, Melissa Dix and Sarah Martin have also filed a cross appeal requesting a higher court review Gibbons’ decision.
“Judge Gibbons’ thoughtful and well-reasoned opinion protects the right of all Tennesseans to share truthful information about abortion without fear that crusading district attorneys will try to prosecute them for doing so,” Horowitz tells the Scene in an email. “It also affirms that the government has no authority to enact overbroad laws that criminalize pure speech based on the government’s disagreement with a speaker’s point of view. We will continue to defend the rights of Ms. Welty, Rep. Behn and all Tennesseans who believe that the government has no right to prosecute citizens for sharing truthful information.”
Tennessee state law bans abortion in all cases except in a “serious risk of substantial and irreversible impairment of major bodily function.” A law that clarifies that definition passed during this year’s session of the Tennessee General Assembly, while a bill that would have allowed abortions in cases of lethal fetal anomalies (fetuses with complications so severe that they could not sustain life outside of the womb) failed.
However, Tennessee doctors who provide abortions during a medical emergency to protect the life of the mother will not be punished, following last year’s Davidson County Chancery Court ruling in a lawsuit that included local physicians.
Attorney General Skrmetti’s office has not returned the Scene’s request for comment as of this writing.
