Tennessee can't stop people from telling teens how to get abortions in other states, per a new ruling from the U.S. Court of Appeals for the Sixth Circuit.
asserted
Tennessee → stop → Circuit
The case concerns Tennessee's Underage Abortion Trafficking Act, which criminalizes the "recruit[ment]" of a minor for any procedure that "would constitute a criminal abortion" under Tennessee law.
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that → concern → law
And with its abortion trafficking statute, the state "purports to reach beyond Tennessee's regulation of abortion within its own borders," as Judge Jane B. Stranch writes in the court's opinion, issued September 24.
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Stranch → purport → opinion
Its recruitment provision outlaws "recruitment for abortions that are illegal in Tennessee but legal where they take place.
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they → outlaw → place
"
This won't fly, said the appeals court, ruling in favor of abortion rights advocates Rachel Welty and Aftyn Behn by affirming a lower court's permanent injunction against the recruitment provision.
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court → fly → provision
You are reading Sex & Tech, from Elizabeth Nolan Brown.
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You → read → Brown
Free Speech and Reproductive Freedom
Welty and Behn advise people in Tennessee—including minors—about how to obtain an abortion in out-of-state places where the procedure is legal.
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procedure → advise → places
Making this illegal violates their First Amendment rights, they argued, and the U.S. District Court for the Middle District of Tennessee agreed.
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Court → make → Tennessee
The 6th Circuit has now affirmed that lower court's ruling, saying the recruitment provision is overly broad and amounts to unconstitutional viewpoint discrimination.
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provision → affirm → discrimination
It sits at the intersection of reproductive freedom and free speech—an intersection that might seem odd but is actually quite crowded.
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that → sit → freedom
In order to enforce abortion bans, a lot of places have also attempted to ban certain sorts of talk about places where abortion isn't banned.
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abortion → enforce → places
The case also involves a great example of anti-abortion politicians using inflammatory (some might say biased) language to muster support for their policies.
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some → involve → policies
"Underage abortion trafficking" conjures an image of someone forcing pregnant girls to get abortions.
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trafficking → conjure → abortions
"Recruitment" suggests that someone is aggressively marketing and selling abortions, perhaps even exerting coercive pressure.
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someone → suggest → pressure
It says an adult commits the crime of abortion trafficking of a minor if the adult "intentionally recruits, harbors, or transports a pregnant unemancipated minor" for purposes of procuring an abortion for the minor, obtaining abortion pills for them, or concealing an abortion from their parents or guardians.
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adult → say → parents
As written, it could be used against people like Welty, a family law attorney in Nashville who focuses on child advocacy work and sometimes sees minors who are seeking abortions without parental consent.
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who → write → consent
Sometimes their parent is their abuser," said Welty at a preliminary induction hearing cited in the 6th Circuit decision.
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Welty → say → decision
She said her "goal as an advocate is never to persuade someone.
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goal → say → someone
It is to give them options and then let them make their own decisions.
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them → give → decisions
It could be used against people like Behn, a social worker and Tennessee state representative.
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It → use → Behn
With pregnant social work clients, she aims to provide "information so that they can make an informed decision" and a space "that doesn't make them feel less than or [unvalued], or that harm will come from this decision," she said.
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she → aim → decision
If a client has decided to get an abortion, Behn provides information or points them to other resources that can help them do so legally out of state.
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them → decide → state
Welty and Behn challenged the recruitment provision as it applies to obtaining (but not concealing) an abortion.
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it → challenge → abortion
"As applied to Welty and Behn, the Recruitment Provision restricts their ability to speak freely about abortion; it is therefore a content-based regulation that is presumptively unconstitutional," the Sixth Circuit held, adding that "Welty's and Behn's speech does not fall within the exception for speech that is integral to criminal conduct…because they encourage minors to obtain legal abortions, not illegal ones."
Cue: Conversion Therapy?
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they → apply → abortions
The Sixth Circuit's decision relies in part on a recent Supreme Court holding (in Chiles v. Salazar) that Colorado's conversation therapy ban was unconstitutional.
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ban → rely → Salazar
Like the Colorado law—which allowed counselors to support and affirm same-sex attraction but not to support and affirm efforts to reduce or suppress it—the Tennessee law lets people encourage minors to continue their pregnancies or provide them with information about adoption but not to suggest that abortion is an option or to support a minor who has already made that decision, the court pointed out.
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court → allow → decision
"Like Colorado's conversion therapy ban, the Recruitment Provision therefore prohibits them from 'voic[ing] certain perspectives the State disfavors when speaking with consenting clients,'" Stranch pointed out:
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Stranch → prohibit → clients
At bottom, both laws regulate speech about personal choices that are disfavored by their respective states; Chiles confirms that such speech is entitled to the full force of First Amendment protections even when it is directed toward minors.
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it → regulate → minors
And because both laws restrict what perspectives a speaker may express about those disfavored personal choices, "they represent 'an egregious form of content discrimination' where First Amendment concerns are at their most 'blatant.'
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concerns → restrict → blatant
When I wrote about Chiles, some people on social media scoffed at the idea that striking down the ban would be good for people who care about liberal or progressive ideas too.
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who → write → ideas
"The Sixth Circuit held what the Constitution has always required: the State of Tennessee cannot criminalize speech about topics the Republican Supermajority and the Attorney General's office deems iniquitous, and it cannot export its abortion ban across state lines to regulate conduct its own laws do not govern
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laws → hold → conduct
," said Behn in a statement posted to Facebook.
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Behn → say → Facebook
But the Sixth Circuit's Chief Judge, Jeffrey Sutton, saw things differently.
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Judge → see → things
In a dissent from the other two judges deciding this case, he suggested that Tennessee's Underage Abortion Trafficking Act doesn't actually reach the kinds of speech and conduct that Behn and Welty are engaged in.
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Behn → decide → that
"All they want to do is to continue to advocate in favor of changes to abortion policy in Tennessee and to provide counseling—information that would inform the individual's decision whether to obtain an abortion—to pregnant minors and adults," Sutton wrote.
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Sutton → want → minors
And in arguments in this case, the state says that this is fine.
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this → say → case
State district attorneys "agree that the plaintiffs' past abortion counseling and planned future counseling do not violate the statute" and "disclaim any desire to prosecute the plaintiffs under the new law for their counseling and information-providing activities."
"I would resolve this case by giving both parties what they want," Sutton continued.
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Sutton → agree → what
"For the plaintiffs, that means they may continue to do the only things they claim an interest in doing, because the law does not apply to mere advocacy and counseling but only to
intentionally recruiting Tennessee children—at a minimum inducing them—to obtain abortions banned by Tennessee law.
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law → mean → law
For the State, that means upholding the law after clarifying its narrow scope.
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that → mean → scope
Its true that the plain text of the law doesn't necessarily mean that the state will or wants to go after activities like those Welty and Behn are engaged in.
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Welty → it → those
…and 33 more, not listed.
The Aporia
