Rep. Aftyn Behn on Lower Broad, April 10, 2024
Tennessee’s “abortion trafficking” law has been blocked following a Friday ruling from the 6th Circuit Court of Appeals.
The legislation passed during the 2024 session of the Tennessee General Assembly, making it illegal to "recruit, harbor, or transport" a minor for an abortion procedure or to obtain abortion pills without their parents’ permission. Rep. Aftyn Behn (D-Nashville) and Nashville attorney Rachel Welty brought the lawsuit in June 2024 on the grounds that it violated the First Amendment right to free speech.
While the bill was making its way through the state legislature, Behn expressed concern that the terminology could be interpreted to make sharing information about abortion resources a crime. The criminalization of free speech lies in the term “recruits,” whose meaning is undefined in the law.
It was blocked by a temporary injunction months later.
Judge gives temporary injunction, citing infringement of free speech
Under the law, brought by Rep. Jason Zachary (R-Knoxville) and Sen. Paul Rose (R-Tipton), any adult who “intentionally recruits, harbors, or transports a pregnant unemancipated minor” for the purpose of receiving an abortion or obtaining abortion pills would face a class-A misdemeanor for “wrongful death of an unborn child,” which could result in one year of jail time. An Idaho court also ruled that a similar state law violates the First Amendment.
According to an opinion written by senior U.S. Circuit Judge Julia Gibbons, the law “does not merely bar recruitment of minors to facilitate illegal abortions in Tennessee; it bars recruitment of minors to facilitate abortions ‘regardless’ of where the procedure occurs. In other words, the law prohibits recruiting an out-of-state abortion that is entirely legal in the state so long as it would be illegal in Tennessee.”
Democratic state House rep joins Mitchell, Reeves and others in race to succeed retiring Mark Green
Earlier this month, Behn announced her run for Tennessee’s 7th Congressional District. A special election for that seat will be held in the coming months following the surprise retirement of incumbent Republican U.S. Rep. Mark Green.
It has been three years since the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturned Roe. v. Wade and put into motion Tennessee’s abortion ban. The ban remains in place, with narrow exceptions for the health of the mother.
“We won this lawsuit on First Amendment grounds because the Constitution is clear — speech is protected,” Behn says in a statement. “The court recognized that the government cannot silence us for offering support, sharing information, or speaking out about issues with which the Republican supermajority disagrees. This is a critical victory not just for Tennesseans but for anyone who believes in the right to speak freely without fear of state retaliation."
