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Tennessee lawmaker and lawyer sue over anti-abortion trafficking law
Tennessee lawmaker and lawyer sue over anti-abortion trafficking law

A Tennessee state lawmaker and an abortion rights activist filed a lawsuit Monday challenging a new anti-abortion law set to take effect July 1.

Democratic Rep. Aftyn Behn of Nashville and attorney Rachel Welty filed the lawsuit in U.S. District Court on Monday, asking a judge to bar local district attorneys from enforcing the law after it takes effect. They claim the law’s recruitment language violates their free speech rights.

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

The bill also contains vague language against anyone who “recruits” a minor for an abortion, a term not defined in the state’s code. Opponents of the bill see this as a potential threat to free speech.

More: Free speech concerns grow as abortion travel ban lands on Tennessee governor’s desk

Behn was a vocal supporter of reproductive rights during her first term in the House and protested the bill when it was proposed. Behn said on social media that she would take a younger person out of state for an abortion even if “they go to jail for it,” a statement that sparked heated discussion during an April House debate on the bill. Welty, an attorney, is a member of an abortion fund that facilitates and advocates for access to legal abortion care.

“The First Amendment protects the right to advocate for access to legal abortion care, and the state of Tennessee does not have the authority to criminalize such advocacy,” Daniel Horwitz, the couple’s lead attorney, said in a statement.

Davidson County District Attorney Glenn Funk is named in the lawsuit along with other Middle Tennessee prosecutors. The Tennessean has reached out to Funk’s office for comment.

The bill’s opponents’ criticism of free speech revolves primarily around the word “recruit,” which is not defined in Tennessee law and which opponents say could potentially criminalize a conversation with a pregnant minor about health care options.

Bryan Davidson, policy director of the American Civil Liberties Union of Tennessee, had previously told the Tennessean that the “impact of an undefined term on free speech” was “troubling.”

“It’s easy to imagine that there could be a reproductive health clinic or a doctor or a non-medical counselor or a social worker, anyone who provides information or options around abortion care and counseling to pregnant minors in Tennessee, who could potentially have their free speech rights violated,” Davidson said.

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

Both Tennessee and Idaho’s laws are based on model legislation from the National Right to Life Committee, the nation’s largest anti-abortion organization that is lobbying the legislature to end access to abortion.

More: Biden administration calls for new privacy rules as Tennessee pushes forward ‘anti-abortion trafficking’ bill

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

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

“All kinds of words are used in statutes that are not defined,” he said. “If the argument is that there is no definition in state law, then you have to look to the common dictionary definition. … The Supreme Court mostly looks to dictionaries to determine the meaning of words in statutes and has never struck down a statute for vagueness because a word in a statute was not defined.”

However, the U.S. Supreme Court and lower courts regularly issue rulings on the “ambiguity doctrine,” such as in a 2023 ruling in which a federal judge struck down Tennessee’s drag ban on the grounds that it was “unconstitutionally vague and overbroad.”

By Liam