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Tennessee is the second state to criminalize the abortion trade of minors. Activists are fighting back.
Tennessee is the second state to criminalize the abortion trade of minors. Activists are fighting back.

Abortion rights activists protest after repeal Roe v. Wade in downtown Nashville on June 24, 2022. (Seth Herald / AFP via Getty Images)

In May, Tennessee followed Idaho’s example and became the second state in the country to criminalize the “abortion trafficking” of minors. The law makes it a Class A misdemeanor – the most serious of the state’s three categories of misdemeanors – for an adult, such as an aunt, grandmother or older sibling, to harbor, recruit or transport a minor. within the state for the purposes of:

  • Concealing an illegal abortion from the parents or guardians of a minor.
  • Procuring an abortion is a crime under Tennessee law, regardless of whether the abortion is legal where it is performed.
  • Purchasing abortion pills for the purpose of having an abortion is a crime under Tennessee state law, regardless of where the pills come from.

Anyone found guilty of trafficking in abortions faces a prison sentence of 11 months and 29 days, the longest sentence possible for a crime under Tennessee law.

The phrase “within the state” may seem quite paradoxical, since Tennessee has one of the strictest abortion bans in the country. Abortions are virtually impossible there unless someone obtains one under a narrow exception. That is, the law would have no real purpose if it actually targeted abortions within the state.

Instead, the use of this language is best understood as a strategic attempt to circumvent the uncertainty in the largely uncharted legal waters of whether states have the authority to expand the reach of their criminal abortion laws beyond their borders. To avoid this potential dilemma, Tennessee’s human trafficking law simply criminalizes the in-state portion of the trip to an out-of-state abortion provider.

In addition to criminal prosecution for assisting a young person in obtaining a legal abortion, a person can also be sued civilly for the “wrongful death” of the unborn child – which further exacerbates the risk posed by this law. The suit can be brought by the parents of the “trafficked young person”, the young person herself, as well as the biological father (unless the pregnancy was the result of rape or incest).

If the lawsuit is successful, the “trafficker” may be required to pay damages to compensate the injured party for the harm caused by the fetus’ death. These may include economic damages, such as possible loss of future earnings, and emotional distress. A court may also award punitive damages, which are intended to punish particularly egregious conduct.

This law virtually eliminates any avenue that allows teenagers to be forced to become parents. The most obvious reason for the law’s prohibitive effect is to protect a teenager’s “unborn child” – Tennessee state law defines it as “a single living member of the species Homo Sapiens, throughout the embryonic and fetal stages of the unborn child (sic) from fertilization to birth.”

However, the law exempts a teenager’s parents (or anyone acting with their written and notarized consent) from criminal or civil liability and makes it clear that there is another plan at work here as well, as this exemption effectively gives parents the final say over the reproductive fate of their pregnant child. This makes it clear that parental rights are an integral part of Tennessee’s human trafficking law, as they have veto power over their child’s abortion decision.

This law virtually eliminates any escape from forced parenthood for teenagers.

Because parents have the power to assist their child in obtaining an abortion outside of their state—which would be challenging without adult assistance, as the state is bordered on all sides by states with abortion bans or restrictive parental involvement laws—it appears that the real driving force behind Tennessee’s (and Idaho’s) anti-abortion trafficking laws is parental rights rather than protecting unborn children.

In fact, the legislative history of the measure strongly suggests so. As Republican Rep. Jason Zachary, who is sponsoring the bill, claimed during a hearing on the bill, it was actually intended to be an “important ‘shield of parental rights.'” He explained that in the “state of Tennessee, you cannot take a child who is under 18 to an emergency room or other medical facility for treatment without the permission of their parents…so all this law says is that as an adult, you cannot take a minor child who is not your own child for a procedure related to an abortion without the consent of the parents.”

While this may be the general rule, like all states, Tennessee has created a broad latitude within which teens can consent for themselves to what is commonly referred to as “sensitive” medical care, including care related to sexual activity. Notably, before the state’s abortion ban, a teen who wanted to terminate a pregnancy had to first obtain consent from a parent or a judge through a court-ordered bypass hearing. In cases both before and after the ban, a teen who instead chooses to carry a pregnancy to term and then either become a parent or place the child for adoption can make those decisions for themselves.

This practice of subjecting teenagers seeking to terminate a pregnancy to a legal regime of “reproductive surveillance and control” is a striking example of “abortion exceptionalism”—namely, the over-regulation of abortion due to its “highly politicized and stigmatized status.” By effectively eliminating the possibility of legal abortion outside the state, Tennessee’s anti-abortion law brings into sharp focus the increased marginalization and unequal treatment of teenagers in states where abortion is illegal.

This additional over-regulation not only exacerbates the differential treatment of teenagers depending on their desired pregnancy outcome, but also creates a legal barrier to accessing abortion for teenagers that is not imposed on adults. Of course, it should be taken into account that adults, particularly if they are low-income, are likely to face practical barriers limiting access to cross-border abortion care.

Taking action against the human trafficking law

Late last month, Democratic Rep. Aftyn Behn of Nashville and abortion rights attorney and activist Rachel Welty filed suit in federal district court challenging the anti-trafficking law on constitutional grounds and calling for its permanent repeal.

Rep. Aftyn Behn is the Democratic representative for the 51st District in the Tennessee House of Representatives. (Courtesy)

At the core of their argument is that the law “criminalises the mere expression of opinion based on the content and views held by a speaker” when it comes to teenagers’ access to legal abortion care.

At a more detailed level, they focus on the problematic nature of the “recruitment ban,” which they argue “seems to criminalize advocating for and facilitating access to legal abortion care, including abortion care provided outside the state in accordance with the laws of sovereign jurisdictions.”

They therefore fear that they will be prosecuted if they continue their lobbying efforts – a fear that is exacerbated by the simultaneous threat of being sued for damages for the “wrongful” death of the fetus, in violation of their right to free speech. They further argue that this chilling effect on their right to free speech is “particularly destructive” to Rep. Behn because it “impairs her role and duty as an elected official while also violating her constituents’ rights to hear from her and to receive information.”

Behn and Welty do not explicitly use the abortion exceptionalism framework in their lawsuit. However, by focusing on criminalizing protected speech based on its “content and viewpoint,” they do so implicitly, acknowledging that the trafficking law “favors the Tennessee government’s anti-abortion views while criminalizing advocacy to the contrary.”

In short, the law gives the state another layer of legal surveillance and control over the pregnant teen’s body. It is a disastrous attempt to prevent this adverse pregnancy outcome and instead force teens into parenthood by legal decree.

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By Liam