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A federal judge has blocked a portion of a Tennessee law that made it a crime for adults to help minors obtain out-of-state abortions without parental consent.
Known for prohibiting “abortion trafficking of a minor,” the law, enacted in 2024 by Republican Gov. Bill Lee, with support from the GOP-controlled legislature, criminalizes certain behavior toward pregnant, unemancipated minors by adults who are not their parents or legal guardians who help them receive abortions – even if the abortion is legal in another state.
U.S. Circuit Judge Julia Gibbons, an appointee of former President George W. Bush, took issue with the law’s “recruitment provision,” which criminalizes giving information to minors about how to receive an abortion out of state or helping minors make travel plans. In a summary judgment Friday, Gibbons agreed the provision violates the First Amendment because it “prohibits speech encouraging lawful abortion while allowing speech discouraging lawful abortion.”
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“That is impermissible viewpoint discrimination, which the First Amendment rarely tolerates – and does not tolerate here,” Gibbons, who sits on the Sixth Circuit Court of Appeals, wrote.
Gibbons permanently blocked enforcement of the provision banning encouraging a minor to seek a legal out-of-state abortion.
“The recruitment provision targets speech because of its message – that abortion is safe, common and normal – and available in certain states – and is presumptively unconstitutional,” the judge added.
Gibbons noted that she was brought in to hear this lower court case after four judges from the Middle District of Tennessee recused themselves. If Tennessee appeals the decision, the case will advance to the U.S. Court of Appeals for the Sixth Circuit.
The Tennessee attorney general has already appealed a November decision by U.S. District Judge Aleta Trauger that temporarily blocked the recruitment provision. That appeal remains pending in the Sixth Circuit Court.
The case was brought by Democratic state Rep. Aftyn Behn, who is a licensed social worker, and Rachel Welty, a Nashville attorney and pro-abortion advocate.
“Because plaintiffs wish to speak about legal abortions and seek to help minors obtain legal, out-of-state abortions, their intended speech is protected under the First Amendment,” Gibbons wrote.
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In response to the decision, Welty and Behn’s lead counsel, Daniel A. Horwitz, said 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.”
“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,” he added in a statement. “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.”
In the final decision, Gibbons, however, rejected the plaintiffs’ claims that the law is too vague to be constitutional under the Due Process Clause. The judge sided with the state on that matter, saying the law is sufficiently specific in what behavior is forbidden. Gibbons did not block portions of the law criminalizing physically transporting minors across state lines to receive an abortion or harboring a minor for the purpose of helping them receive an abortion.
“The court grants summary judgment for the plaintiffs on their free speech claims and enjoins enforcement of the recruiting prong of the statute,” Gibbons wrote. “The statute is not, however, void for vagueness. The court therefore grants summary judgment for defendants on plaintiff’s vagueness claim.”
The law does not apply to the minor’s parent or legal guardian, licensed media providers acting in emergency situations, or law enforcement acting within official duties.
Violations constitute a Class A Misdemeanor punishable by up to 11 months and 29 days in jail or a fine of up to $2,500. The statute provides that violators “may be held liable in a civil action for the wrongful death of an unborn child who was aborted.”
After the U.S. Supreme Court overturned Roe v. Wade, Tennessee enforced a “trigger law,” effectively banning abortions in most cases, with limited exceptions.
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