Federal Court Temporarily Blocks Tennessee ‘Abortion Trafficking’ Law

Pro-abortion demonstrators in Nashville on June 24, 2022. Seth Herald/AFP via Getty Images

A federal judge on Sept. 20 temporarily blocked a Tennessee law that bars adults from helping minors get abortions without parental permission.

The law, Chapter 1032, says it is illegal for an adult who “intentionally recruits, harbors, or transports” a pregnant child or teen within the state for the purpose of an abortion without consent from the minor’s parents or guardians. Adults who commit “abortion trafficking of a minor” under the law are liable for a Class A misdemeanor, which requires a nearly one-year jail sentence.

The law was passed by legislators and signed by Tennessee Gov. Bill Lee earlier this year and took effect on July 1.

Tennessee Rep. Aftyn Behn, a Democrat, and lawyer Rachel Welty sued state officials over the law, alleging that it violates the First Amendment. Welty regularly helps minors get abortions, according to the suit, and Behn has offered to transport minors to other states for abortions.

U.S. District Judge Aleta Trauger said she was entering a preliminary injunction against the law in part because of a provision that bars the recruitment of minors for abortions “regardless of where the abortion is to be procured.”

“If Tennessee had chosen to limit that prohibition to abortions performed illegally in Tennessee, then that enactment would likely have been within the tradition of prohibitions on speech facilitating unlawful acts,” the judge said in the Sept. 20 decision.

But the way the law is structured means Tennessee “has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal,” she added.

In Tennessee, abortions are illegal, with a few exceptions. However, because Tennessee is part of the United States, officials must accept that other states allow legal abortions and cannot make it a crime for people to communicate about traveling out of state to obtain an abortion, the judge said.

The injunction is set to remain in place as the case proceeds.

State officials defended the law. As the law has been debated, passed, and defended, different officials and lawmakers have offered various definitions of the word “recruit.”

“Whatever it means to ’recruit' a person to receive a lawful abortion, however, such recruitment would inherently involve First Amendment-protected speech, meaning that the recruitment provision is subject to the ordinary restrictions that the First Amendment imposes,” Trauger said. “Because the provision fails to comply with those restrictions in multiple ways, the court will enjoin its enforcement and will not dismiss the plaintiffs’ claims.”

In a statement, Behn said the ruling “is a monumental victory for free speech and the fight for abortion rights.”

“[The court] has affirmed our right to speak openly about abortion options without fear of legal repercussion,” she said.

Welty said that the ruling protects the attorney–client relationship and “safeguards the freedom of speech for attorneys across the country to discuss abortion care openly and honestly.”

State Rep. Jason Zachary, a Republican who helped craft the statute, said the ruling was incorrect.

“The law in question is about parental rights, period,” he said in a social media post. “The language prohibits an adult who is not the parent/guardian of a minor from facilitating an abortion for that minor without the parent’s consent. This is common sense.”

Zachary said that he’s confident Tennessee’s attorney general will ultimately succeed against the suit.

The Associated Press contributed to this report.