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The Tennessee Conservative [By Paula Gomes] –
A federal judge has permanently blocked part of the law in Tennessee that makes it a felony to transport a minor for an illegal abortion without gaining parental consent.
U.S. Circuit Judge Julia Gibbons ruled that the specific part of the law referring to “recruitment” was unconstitutional and cannot be enforced as it restricts protected speech.
Last June, State Representative Aftyn Behn (D-Nashville-District 51) filed the lawsuit along with co-plaintiff Rachel Welty, a Nashville family law attorney claiming that the wording in the law that was set to go into effect last July was “unconstitutionally vague” and violated First Amendment rights by criminalizing certain speech.
The lawsuit listed 11 Middle Tennessee district attorneys as defendants, saying that they failed to respond to Welty’s requests for an explanation of exactly what would become illegal under the new law.
During discussions of the legislation before it was passed by the Tennessee General Assembly, Behn was referenced by Representative Jason Zachary (R-Knoxville-District 14), who sponsored the bill, for a social media post she made that offered assistance to minors for the purpose of going out of the state for an abortion.
“That is what recruitment looks like,” stated Zachary.
The portion of law that Gibbons blocked would have made it a felony to either recruit or transport a minor for an abortion unless parental consent was first obtained.
The decision mirrors the September 2024 decision of U.S. District Court Judge Aleta Trauger who temporarily blocked the enforcement of the Underage Abortion Trafficking Act.
The 49-page ruling from U.S. District Judge Aleta Trauger – a Bill Clinton appointee – sided with Behn and Welty’s First Amendment rights argument with Trauger stating that Tennessee cannot make criminal the ability to communicate freely about legal abortion options in other states.
Trauger’s decision meant that no adults could be prosecuted for taking minors out-of-state without parental consent for an abortion while the case made its way through the state’s courts. Also agreeing with the plaintiffs, Trauger said that the word “recruits” in the law was undefined in the statute.
In making the block permanent, Gibbons said that while the state may “constitutionally punish speech made in direct furtherance of in-state abortion” because it is illegal in Tennessee, “speech recruiting a minor to procure a legal abortion in another state” cannot be criminalized.
Further, Gibbons wrote in her opinion, “Tennessee cannot criminalize ‘disseminating information about an activity that is legal in another state,’” stating that it is “impermissible viewpoint discrimination, which the First Amendment rarely tolerates – and does not tolerate here.”
General Counsel for National Right to Life, James Bopp, Jr. developed the model legislation that Tennessee’s law was based upon. Bopp has dismissed concerns over “vagueness” with the word “recruit” not being defined in the law.
“There are all sorts of words that are used in statutes that are not defined. So that’s just complete B.S.,” said Bopp last year in an interview with the Jackson Sun. “The Supreme Court, most of the time, is looking at dictionaries to determine the meaning of words that are in statutes and have never struck down a statute based on vagueness, because a word was defined in a statute.”
Tennessee Right to Life (TRTL) expressed their extreme disappointment in the ruling of U.S. Circuit Judge Julia S. Gibbons to block Tennessee’s Underage Abortion Trafficking Act stating that the law, which made it a crime to recruit, harbor or transport a minor for an abortion or obtain abortion drugs for a minor without her parent’s consent, was passed overwhelmingly during the 2024 session of the General Assembly.
TRTL points out that the legislation was introduced and passed in part to address attempts by the abortion industry to circumvent laws in pro-life states like Tennessee. For example, Planned Parenthood has been caught admitting that they facilitate travel for underage girls and those aiding and abetting them, without the knowledge or consent of their parents.
Will Brewer, Director of Government Relations for the organization said, “It is disappointing that, even in the post-Roe era, unelected judges are trying to usurp the will of pro-life Tennesseans who, through their elected leaders, have made it abundantly clear that abortion has no place in Tennessee and that parents have a right to keep their children from harm. Recruiting minors and advising them to procure an out-of-state abortion without the knowledge of their parents should definitely be a crime. We hope and expect that the Sixth Circuit will show more respect for that viewpoint than the District Court.”
Tennessee Right to Life President, Stacy Dunn, found little comfort in the judge’s ruling about the vagueness of the law. “If the judge has no objection to the term ‘recruit’ as used in this law, it is difficult to understand her position. How can it be unconstitutional to protect young girls from those who want to exploit and coerce them while keeping their parents in the dark? That is beyond comprehension.”
While abortion has been almost completely banned in Tennessee since August 2022, there are commonsense exemptions for molar pregnancies, ectopic pregnancies, administrating D&C procedures after a miscarriage or when the mother’s life is in mortal danger.
Despite this, more than 10,000 Tennessee women crossed state lines to obtain an abortion in 2023, according to estimates from the Guttmacher Institute.
Of the 10,570 abortions that Tennessee women obtained that year in other states, 7,120 traveled to Illinois, 1,280 to North Carolina and 880 to Virginia, the institute reported.
Tennessee residents also obtained abortions in California (220), Georgia (950), and South Carolina (120).
About the Author: Paula Gomes is a Tennessee resident and reporter for The Tennessee Conservative. You can reach Paula at paula@tennesseeconservativenews.com.
