Judge Blocks Tennessee Law that Criminalizes Helping Minors Travel for Abortion—For Now
As anti-abortion lawmakers ratchet up efforts to trap people in their states under abortion bans, earlier this year, Tennessee became the second state to pass a law to criminalize “abortion trafficking” with Gov. Bill Lee's (R) signature. Under this law, which took effect on July 1, adults who help minors travel out-of-state to seek abortion care without parental consent can face up to a year in prison. On Friday, a federal judge temporarily blocked the law pending trial, agreeing with a lawsuit that argues that it violates free speech.
In her opinion, U.S. District Court Judge Aleta Trauger took particular issue with language in the law that criminalizes anyone who "recruits" a minor for an abortion, as the law doesn’t define what recruitment entails. According to Trauger, the law “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.” Trauger also suggested the law will likely be found unconstitutional because of its attack on protected speech about a procedure that, while banned in Tennessee, is legal in other states. And, to be clear, interstate travel—including for abortion—is a constitutionally protected federal right.
Trauger’s ruling comes after state Rep. Aftyn Behn (D) and attorney Rachel Welty filed a lawsuit shortly after the law’s passage. Trauger rejected several attempts from attorneys for the state to enforce the law even as it awaits trial, as these attorneys cited a “compelling interest in safeguarding the wellbeing of children and protecting the relationship between children and their parents.” In response, Trauger argued that “Welty and Behn do not just have a right to speak their message,” but 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.”
Tennessee is the first state to pass such a law since Idaho’s version briefly took effect last spring, only to be blocked in court months later. Arkansas introduced a near-identical bill to prohibit “abortion trafficking” in January. Legal experts have warned that laws like this carry disparate harm for underage sexual abuse victims or minors who lack trusted parents and may live in abusive homes. Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi, condemned the law for endangering young people back in January: “Most minors involve a parent in their decision to get an abortion. But for young people living in abusive households, disclosing sexual activity or pregnancy can trigger physical or emotional abuse, including direct physical or sexual violence, or being thrown out of the home."
The law targets minors, who face some of the greatest barriers to access abortion, by design. A report by Guttmacher published earlier this year showed one in five adolescents didn’t know where to get abortion compared to 11% of adults. “If you’re banning abortion support for minors, that could result in just stopping them from getting abortion care altogether,” Jessica Goldberg, youth access counsel at If/When/How, told Jezebel in April, when the law first passed through Tennessee’s legislature. Goldberg also warned that the law could be wielded as a tool for abusers: “We know that bans on abortion support have been weaponized by abusers to further abuse and to harass their victims or their victims’ loved ones through abusive litigation and campaigns of terror. This opens the door for that to happen.”
Despite Republicans pledging that after overturning Roe v. Wade, abortion would be left up to the states, there’s been a concerning rise in anti-abortion efforts to stop people from traveling out-of-state. On the federal level, Senate Republicans blocked a bill to codify a right to interstate travel for abortion. Several Texas counties have outlawed use of their highways for abortion-related travel, though these ordinances are all but impossible to enforce and are solely meant to chill travel. One anti-abortion attorney has been helping men take legal action against ex-partners for abortion-related travel. In Alabama, abortion funds have been unable to help most callers because the state’s attorney general threatened to prosecute anyone who helps someone travel for the procedure. None of this changes the fact that interstate abortion travel is legal—and so is helping people seek the procedure where it’s legal.
In May, the ACLU warned Lee that the “abortion trafficking” law wouldn’t hold up in court. The organization told the governor in a letter that “nothing” in the law “suggests a court will look more favorably on its content-based criminalization of speech and expression,” and described it as “unconstitutionally vague.” They may have been on to something!