Tennessee lawmaker, Nashville lawyer sue over 'abortion trafficking' law

A Tennessee state representative and an abortion rights advocate filed a lawsuit Monday that challenges a new "abortion trafficking" law set to go into effect on July 1.

Rep. Aftyn Behn, D-Nashville, and attorney Rachel Welty filed the suit in U.S. District Court on Monday, asking a judge to block local district attorneys from enforcing the law once it goes into effect and alleging the recruitment language in the law violates their right to free speech.

The new law criminalizes adults who, without parental consent, tranport 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 law also includes vague language against anyone who "recruits" a minor for an abortion, a term not defined in state code that opponents of the bill flagged as a potential slippery slope of protected speech issues.

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Behn has been a vocal supporter of reproductive rights during her first term in the House, protesting the law when it was proposed legislation. Behn 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. Welty, an attorney, is a member of an abortion fund that facilitates access to and advocates for legal abortion care.

“The First Amendment safeguards the right to advocate for access to legal abortion care, and the State of Tennessee lacks authority to criminalize such advocacy,” Daniel Horwitz, the pair's lead attorney, said in a statement.

Davidson County District Attorney Glenn Funk is named in the lawsuit alongside other Middle Tennessee DAs. The Tennessean has reached out to Funk's office for comment.

Free speech concerns from opponents of the bill are heavily centered on the word “recruit,” which is not defined in Tennessee state law and which opponents say could potentially criminalize speaking to a pregnant minor about health care options.

Bryan Davidson, policy director at the American Civil Liberties Union of Tennessee, previously told The Tennessean the "free expression implications" of an undefined term are "troubling."

"It's easy to imagine that there could be a reproductive health clinic or a clinician, non-medical counselor or a social worker, anybody who provides information or options around abortion care and counseling to pregnant minors in Tennessee, who could potentially have their free speech rights infringed upon," Davidson said.

In Idaho in late 2023, lawmakers passed a nearly identical law to Tennessee’s version. A federal judge temporarily blocked the law after a lawyer and two medical advocacy groups sued over concerns it violated their First Amendment right to discuss abortion with minors and their Fourth Amendment right to travel between states where the procedure is legal.

Both the Tennessee law and the Idaho law are based on model legislation written by the National Right to Life Committee — the nation’s largest anti-abortion organization that lobbies legislatures to end abortion access.

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James Bopp Jr., the general counsel for the National Right to Life Committee, called the First Amendment concerns “a complete lie” and “bulls***.”

“There's no confusion about that,” he said in an interview with The Tennessean, adding that “nobody thinks” that the word “recruit” could include “just posting information” or speaking about abortion.

“There are all sorts of words that are used in statutes that are not defined," he said. "If their argument is there's not a definition in state law, then you look to the common dictionary definition. … The Supreme Court, most of the time, is looking at dictionaries to determine the meaning of words that are in statutes and have never struck down a statute based on vagueness, because a word was not defined in a statute.”

However, the U.S. Supreme Court and lower courts regularly rule on the "vagueness doctrine," such as a 2023 ruling in which a federal judge blocked Tennessee's drag ban for being "unconstitutionally vague and overbroad."

This article originally appeared on Nashville Tennessean: Tennessee lawmaker, Nashville lawyer sue over 'abortion trafficking' law