Federal judge permanently blocks part of TN abortion travel ban on free speech grounds
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Federal judge permanently blocks part of TN abortion travel ban on free speech grounds
A federal judge has permanently blocked a portion of a Tennessee law that makes it a felony to recruit or transport a minor for an illegal abortion without parental consent. The ruling is the result of a June 2024 lawsuit filed by Tennessee State Representative Aftyn Behn, D-Nashville, and Nashville family law attorney Rachel Welty. The lawsuit raised concerns over the portion of the law that criminalized anyone who “recruits” a minor. The term “recruit” is not defined in state code, which opponents of theLaw said could prove problematic for the First Amendment. A nearly identical law in Idaho, whose state chapter was lobbied for by the National Right to Life Committee, saw a nearly-identical enjoinment in December 2024 on the provision, citing First Amendment reasons. The law was passed in spring 2024, and Democrats pressed Republicans on how it could be applied, and whether an adult who mentions an out-of-state abortion option or other discussions of reproductive health care could be found liable under the law.
All enforcement of the “recruitment” provision of the law is now permanently enjoined, following a July 18 ruling by Senior Sixth Circuit Court of Appeals Judge Julia Gibbons, sitting as district judge by designation.
The ruling is the result of a June 2024 lawsuit filed by Tennessee State Representative Aftyn Behn, D-Nashville, and Nashville family law attorney Rachel Welty, who raised concerns over the portion of the law that criminalized anyone who “recruits” a minor for an abortion, calling it unconstitutional and vague.
The term “recruit” is not defined in state code, which opponents of the law said could prove problematic for the First Amendment.
Gibbons appeared to agree with the free speech concerns, stating that the recruitment portion of the law “prohibits speech encouraging lawful abortion while allowing speech discouraging lawful abortion.”
“That is impermissible viewpoint discrimination, which the First Amendment rarely tolerates — and does not tolerate here,” she wrote in her opinion.
Her ruling explicitly defends that “public advocacy, information sharing and counseling,” which includes informing Tennessee residents — both adults and minors — where they can receive out of state abortions is protected speech.
“Because abortion is generally illegal in Tennessee, the state may constitutionally punish speech made in direct furtherance of in-state abortions…The state may not, however, criminalize speech recruiting a minor to procure a legal abortion in another state,” she said. “Tennessee cannot criminalize ‘disseminating information about an activity that is legal in another state.’”
U.S. District Court Judge Aleta Trauger in September 2024 temporarily blocked enforcement of the same recruitment provision, citing nearly identical concerns.
“We won this lawsuit on First Amendment grounds because the Constitution is clear — speech is protected,” said Behn, in a statement to The Tennessean. “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.”
Attorney General Jonathan Skrmetti, who defended the law on behalf of the state, has not yet responded to a request for comment.
“Judge Gibbons’ thoughtful and well-reasoned opinion protects the right of all Tennesseans to share truthful information about abortion without fear that crusading prosecutors will try to punish them criminally for doing so,” said Nashville First Amendment attorney Daniel Horwitz, Welty and Behn’s lead counsel, who represented the plaintiffs alongside Horwitz Law attorney Sarah Martin. “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. This is a major victory for Ms. Welty, Representative Behn, and all Tennesseans who believe that the government has no right to prosecute citizens for sharing truthful information.”
Ruling follows tensions surrounding bill’s passage
The ruling comes after over a year of tensions surrounding the law since its debut on the House floor in early 2024.
As the bill, sponsored by Rep. Jason Zachary, R-Knoxville, made its way through the General Assembly in spring 2024, Democrats pressed Republicans on how the recruiting portion of the law could be applied, and whether an adult who mentions an out-of-state abortion option or other discussions of reproductive health care could be found liable under the law.
Behn even held signs in protest of the law on Lower Broadway, and said on social media she would take a younger person out of state for an abortion even if “it lands me in jail,” a statement that led to a heated argument on the House floor during an April debate over the bill.
Tennessee is not unique in facing this legislation.
A nearly identical law in Idaho, lobbied for by the National Right to Life Committee, whose state chapter was instrumental in Tennessee’s law, saw a nearly-identical enjoinment in December 2024 on the recruitment provision, citing First Amendment reasons.
In a previous interview with the James Bopp Jr., the general counsel for the National Right to Life Committee, which largely authored the bill text used in the Tennessee and Idaho versions of the law, Bopp called concerns over the term “recruitment” “bulls**t.”
“There’s no confusion about that,” he said, adding that “nobody thinks” that the word “recruit” could include “just posting information” or speaking about abortion.
It seems the courts disagree.
The USA TODAY Network – The South region’s coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham
Federal judge permanently blocks part of TN abortion travel ban on free speech grounds
A federal judge has permanently blocked a portion of a Tennessee law that makes it a felony to recruit or transport a minor for an illegal abortion without parental consent. The ruling is the result of a June 2024 lawsuit filed by Tennessee State Representative Aftyn Behn, D-Nashville, and Nashville family law attorney Rachel Welty. The lawsuit raised concerns over the portion of the law that criminalized anyone who “recruits” a minor. The term “recruit” is not defined in state code, which opponents of theLaw said could prove problematic for the First Amendment. A nearly identical law in Idaho, whose state chapter was lobbied for by the National Right to Life Committee, saw a nearly-identical enjoinment in December 2024 on the provision, citing First Amendment reasons. The law was passed in spring 2024, and Democrats pressed Republicans on how it could be applied, and whether an adult who mentions an out-of-state abortion option or other discussions of reproductive health care could be found liable under the law.
All enforcement of the “recruitment” provision of the law is now permanently enjoined, following a July 18 ruling by Senior Sixth Circuit Court of Appeals Judge Julia Gibbons, sitting as district judge by designation.
The ruling is the result of a June 2024 lawsuit filed by Tennessee State Representative Aftyn Behn, D-Nashville, and Nashville family law attorney Rachel Welty, who raised concerns over the portion of the law that criminalized anyone who “recruits” a minor for an abortion, calling it unconstitutional and vague.
The term “recruit” is not defined in state code, which opponents of the law said could prove problematic for the First Amendment.
Gibbons appeared to agree with the free speech concerns, stating that the recruitment portion of the law “prohibits speech encouraging lawful abortion while allowing speech discouraging lawful abortion.”
“That is impermissible viewpoint discrimination, which the First Amendment rarely tolerates — and does not tolerate here,” she wrote in her opinion.
Her ruling explicitly defends that “public advocacy, information sharing and counseling,” which includes informing Tennessee residents — both adults and minors — where they can receive out of state abortions is protected speech.
“Because abortion is generally illegal in Tennessee, the state may constitutionally punish speech made in direct furtherance of in-state abortions…The state may not, however, criminalize speech recruiting a minor to procure a legal abortion in another state,” she said. “Tennessee cannot criminalize ‘disseminating information about an activity that is legal in another state.’”
U.S. District Court Judge Aleta Trauger in September 2024 temporarily blocked enforcement of the same recruitment provision, citing nearly identical concerns.
“We won this lawsuit on First Amendment grounds because the Constitution is clear — speech is protected,” said Behn, in a statement to The Tennessean. “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.”
Attorney General Jonathan Skrmetti, who defended the law on behalf of the state, has not yet responded to a request for comment.
“Judge Gibbons’ thoughtful and well-reasoned opinion protects the right of all Tennesseans to share truthful information about abortion without fear that crusading prosecutors will try to punish them criminally for doing so,” said Nashville First Amendment attorney Daniel Horwitz, Welty and Behn’s lead counsel, who represented the plaintiffs alongside Horwitz Law attorney Sarah Martin. “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. This is a major victory for Ms. Welty, Representative Behn, and all Tennesseans who believe that the government has no right to prosecute citizens for sharing truthful information.”
Ruling follows tensions surrounding bill’s passage
The ruling comes after over a year of tensions surrounding the law since its debut on the House floor in early 2024.
As the bill, sponsored by Rep. Jason Zachary, R-Knoxville, made its way through the General Assembly in spring 2024, Democrats pressed Republicans on how the recruiting portion of the law could be applied, and whether an adult who mentions an out-of-state abortion option or other discussions of reproductive health care could be found liable under the law.
Behn even held signs in protest of the law on Lower Broadway, and said on social media she would take a younger person out of state for an abortion even if “it lands me in jail,” a statement that led to a heated argument on the House floor during an April debate over the bill.
Tennessee is not unique in facing this legislation.
A nearly identical law in Idaho, lobbied for by the National Right to Life Committee, whose state chapter was instrumental in Tennessee’s law, saw a nearly-identical enjoinment in December 2024 on the recruitment provision, citing First Amendment reasons.
In a previous interview with the James Bopp Jr., the general counsel for the National Right to Life Committee, which largely authored the bill text used in the Tennessee and Idaho versions of the law, Bopp called concerns over the term “recruitment” “bulls**t.”
“There’s no confusion about that,” he said, adding that “nobody thinks” that the word “recruit” could include “just posting information” or speaking about abortion.
It seems the courts disagree.
The USA TODAY Network – The South region’s coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham