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Federal judge temporarily blocks part of TN’s abortion travel ban on free speech grounds

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Federal judge temporarily blocks part of TN’s abortion travel ban on free speech grounds

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A federal judge has blocked a portion of a new Tennessee law passed earlier this year that makes it a felony to recruit or transport a minor for an illegal abortion without parental consent, following wide First Amendment concerns over the phrasing of the law.

The new law criminalizes adults who, without parental consent, transport a minor for an abortion considered illegal under Tennessee law, even if the abortion is performed in a location where the procedure is legal.

The federal lawsuit — filed by state Rep. Aftyn Behn, D-Nashville, and Nashville attorney Rachel Welty — took particular aim at a portion of the law criminalizing anyone who “recruits” a minor for an abortion, a term not defined in state code that opponents of the bill could prove problematic for free speech issues.

More: Concerns over free speech grow as abortion travel ban heads to Tennessee governor’s desk

U.S. District Court Judge Aleta Trauger on Friday temporarily blocked enforcement of that recruitment provision.

Following the passage of the law, Behn and Welty, along with a number of free speech advocates, expressed concern that the law could potentially criminalize protected speech, including speaking to a pregnant minor about health care options.

Trauger appeared to agree.

“No one associated with (the law) seems to have a particularly clear picture of what the provision is supposed to prohibit — not the prosecutors who will be called on to enforce it; not the state attorneys called on to defend the statute in court; and, it seems, not even the individuals who drafted the provision itself,” Trauger wrote in her ruling.

Trauger said the law creates “criminal exposure” for statements encouraging abortion, but not for nearly identical statements discouraging abortion, and delivers a hearty defense of free speech rights.

“The freedom of speech guaranteed by the First Amendment is not simply a special protection that the Constitution grants to a few, high-profile speakers so that those speakers can hear themselves talk; it is a protection available to everyone, for the interconnected benefit of everyone, because messages do not gain their fullest power by being uttered, but by being spread,” Trauger said. “Welty and Behn do not just have a right to speak their message; 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.”

Bill controversial from the start

The lawsuit and ruling follow months of tensions surrounding the law since its debut on the House floor.

As the bill, sponsored by Rep. Jason Zachary, R-Knoxville, made its way through the General Assembly this spring, 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.

Earlier this year, Behn 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. 

The legislation doesn’t explicitly refer to out-of-state abortions, only transporting a minor without parental permission. But due to Tennessee’s near-total abortion ban, transporting a minor to receive the procedure would almost certainly involve traveling out of state.

Behn praised Friday’s ruling as a win against state overreach.

“Our extreme GOP legislature will keep attacking our First Amendment rights, even as they claim to oppose big government,” she said. “This lawsuit was a test case to see how far they could push the boundaries, and it’s clear they’ll stop at nothing to restrict our freedoms. This ruling isn’t just a win for those defending access to abortion information, but for anyone who cares about protecting our constitutional rights from state overreach.”

In a statement on X, formerly Twitter, Zachary emphasized that the travel ban was an issue of “parental rights,” and expressed optimism that the law would be upheld upon the conclusion of the lawsuit.

“Abortion is a settled issue in Tennessee,” he said. “We have prohibited the elective killing of a baby in the womb. We do have an exception for the life of the mother. The law in question is about parental rights, period. 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. Unfortunately, the radical left’s obsession with aborting babies led to this legal challenge. I’m confident our Attorney General will successfully defend the law, securing parents rights to make decisions for their child.”

Opinion: Democrats think abortion is a winning election issue. Not a chance in pro-life Tennessee.

Friday’s ruling joins the ranks of similar lawsuits across the country as laws against traveling for abortion pass in conservative states. A nearly identical law in Idaho, lobbied for by the National Right to Life Committee, whose state chapter was instrumental in Tennessee’s law, was temporarily paused for similar concerns.

Attorney General Jonathan Skrmetti, defending the law on behalf of the state, has not yet responded to a request for comment.

The USA TODAY Network – Tennessee’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

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