Background
Tennessee’s Underage Abortion Trafficking Act makes it a crime for an adult to intentionally recruit a pregnant, unemancipated minor in Tennessee to obtain an abortion that would be illegal under Tennessee law, regardless of where the abortion occurs. The challenged provision also covers recruitment to obtain abortion-inducing medication. Parents, legal guardians, and people with written, notarized parental consent are exempt.
Abortion-rights advocates Rachel Welty and Aftyn Behn regularly counsel or provide information to Tennesseans, including minors, about obtaining legal abortions outside Tennessee. They filed a pre-enforcement challenge against Tennessee district attorneys, alleging that the recruitment provision violated the First Amendment and was unconstitutionally vague. The district court granted them summary judgment on their as-applied and facial First Amendment claims, rejected their vagueness claim, and enjoined enforcement of the recruitment provision.
The Court’s Holding
A divided Sixth Circuit affirmed. The majority held that Welty and Behn had standing because their intended advocacy and counseling were arguably covered by the statute and they faced a credible threat of enforcement. Their speech included supporting a minor’s decision to obtain an abortion and providing practical information about lawful out-of-state services.
On the merits, the majority held that applying the provision to Welty and Behn would unconstitutionally discriminate against their viewpoint and that the provision was facially overbroad because it prohibited a substantial amount of protected speech concerning abortions that are lawful where performed. The court also affirmed the injunction barring enforcement of the recruitment provision. Because the First Amendment rulings resolved the case, the majority did not reach Welty and Behn’s protective cross-appeal on vagueness. Chief Judge Sutton dissented.
Key Takeaways
- Speech encouraging or helping a minor obtain an abortion that is legal in another state may not be criminalized merely because the same abortion would be unlawful in Tennessee.
- The court treated counseling, advocacy, referrals, and practical information about lawful abortion access as protected First Amendment activity.
- The Sixth Circuit affirmed both the provision’s facial invalidation for overbreadth and the injunction against its enforcement.
Why It Matters
The decision limits a state’s ability to extend its abortion policy through restrictions on in-state speech about lawful conduct elsewhere. It protects advocates and counselors who discuss or facilitate access to legal out-of-state abortion services, including in conversations with minors.
The dissent viewed the law as a permissible protection against recruiting minors to evade Tennessee’s abortion restrictions and argued that the statewide injunction exceeded traditional equitable authority. The majority nevertheless left the district court’s full injunction in place.