The Fred D. Thompson U.S. Courthouse and Federal Building in Nashville, TN. (Photo John Partipilo)
A federal judge has temporarily blocked enforcement of Tennessee’s so-called “abortion trafficking law,” which subjects adults who aid minors in getting an abortion without parental permission to criminal prosecution and civil lawsuits.
In a lengthy opinion, U.S. District Judge Aleta Trauger concluded the law is likely to be found to be an unconstitutional ban on protected speech about a procedure that, while largely banned in Tennessee, is legally available in other states.
The law outlaws the “recruitment” of a minor to obtain an abortion, a term the judge concluded was so ill-defined it could encompass a wide range of conversations about abortion, including simply telling a pregnant teen about all of her options.
“Tennessee, in other words, has chosen to outlaw certain communications in furtherance of abortions that are, in fact, entirely legal,” the decision, released Friday, said. “It is, therefore, a basic constitutional fact – which Tennessee has no choice but to accept – that as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans.”
The lawsuit was brought 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 a “advocate for safe and healthy access to abortion care.” They are represented in the case by Nashville attorneys Daniel Horwitz and Sarah Martin.
Both women said they did not know if the information and advocacy they provided would be interpreted as “recruiting” a minor for abortion and subjecting them to felony arrest and prosecution.
Before filing suit, Welty sent a letter to district attorneys in Middle Tennessee seeking “assurances and/or clarification of their intentions regarding the enforcement of the law.” None of the district attorneys responded.
Behn, in an emailed statement Monday, criticized the bill as being “pushed by special interests and their bought-and-paid-for legislators to test how far they can go in undermining our constitutional rights.”
Friday’s preliminary injunction prevents the law from being enforced pending a trial in the case, which has not yet been scheduled. In issuing the order, Trauger rejected an effort by state lawyers to dismiss the case entirely or to confine her injunction against enforcing the law to only the two women filing suit.
“Welty and Behn do not just have a right to speak their message,” Trauger wrote. “They have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech – just freedom of a few speakers to address a silenced populace.”
Trauger also shot down an argument by lawyers defending the law that it was rooted in the state’s “compelling interest in safeguarding the wellbeing of children and protecting the relationship between children and their parents.”
The law, Trauger wrote, “completely fails to explain how the recruitment provision is tailored to address … the wellbeing of Tennessee children. If anything, it is particularly striking for its lack of any provision focusing on the best interests of the minor at issue.”