NASHVILLE, Tenn. – As Tennessee prepares to become the second U.S. state to enact a ban against adults helping minors get an abortion without parental permission, a state Democratic lawmaker and reproductive rights activist on Monday filed a legal challenge alleging the statute is unconstitutional.
The complaint filed in federal court came on the second anniversary of the Supreme Court’s decision overturning Roe v. Wade, the 1973 decision that had guaranteed a constitutional right to abortion. The lawsuit was filed on behalf of Democratic Rep. Aftyn Behn and Nashville attorney Rachel Welty.
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“Two years ago today, I vowed to aid and abet abortion always, to not give up despite the overturn of Roe v. Wade, and to fight," Welty, a longtime abortion access advocate, said in a statement. “I need to stand up for other advocates around the state who should not have to live in fear of civil or criminal penalties for disseminating information about routine healthcare.”
Earlier this year, Tennessee's GOP-controlled Statehouse signed off on a proposal making it illegal for an adult who “intentionally recruits, harbors, or transports” a pregnant minor within the state to get an abortion without consent from the minor’s parents or guardians. Those convicted of breaking the law would be charged with a Class A misdemeanor, which requires a nearly one-year jail sentence.
The law, which goes into effect July 1, does not contain exemptions for minors who may have been raped by their parents or guardians. Instead, the statute says a biological father who raped the minor and caused the pregnancy can't pursue a civil action.
The Tennessee law mimics the so-called “ abortion trafficking ” law enacted in Idaho last year, but a federal judge has since temporarily blocked that state's statute after reproductive rights groups sued to challenge it.
The lawsuit filed Monday names 11 district attorneys who work in middle Tennessee as the defendants, alleging that they all ignored Welty’s previous requests to define what behavior would be deemed illegal under the new law.
A spokesperson for the attorney general's office, which represents the state in constitutional lawsuits, did not immediately return an emailed request for comment.
According to the lawsuit, Welty and Behn argue that the law is “unconstitutionally vague,” pointing out that the word “recruits" is undefined. They also argue that the statute criminalizes certain speech in violation of the First Amendment.
“The law was intended to scare Tennesseans from helping each other when they need it the most," Behn and Welty said in a joint statement. “It’s not working. We’ll still be here supporting each other, loving folks who’ve had abortions, and providing people with key information about their options.”
Notably, while Tennessee lawmakers were debating the legislation on the House floor, the Republican bill sponsor specifically referred to Behn’s previous public promise to help any young person travel out of state if they needed an abortion.
“Unfortunately, there’s even a member of this body that recently tweeted out, ‘I welcome the opportunity to take a young person out of state who wants to have an abortion, even if it lands me in jail,'” Rep. Jason Zachary said in April, adding “that is what recruitment looks like.”
Zachary and others have defended the law as needed to protect parental rights, pointing to a lawsuit filed earlier this year by Missouri’s attorney general, Andrew Bailey.
Bailey, a Republican, has accused Planned Parenthood of illegally taking minors from Missouri into Kansas to obtain abortions without parental consent. The lawsuit, based on a video from a conservative group that has promoted false claims on other issues, asks a state district court to stop Planned Parenthood from engaging in the conduct alleged in the complaint.
Tennessee bans abortions at all stages of pregnancy, but there are exemptions in cases of molar pregnancies, ectopic pregnancies, and to remove a miscarriage or to save the life of the mother. Notably, doctors must use their “reasonable medical” judgment — a term that some say is too vague and can be challenged by fellow medical officials — in deciding whether providing the procedure can save the life of the pregnant patient or prevent major injury.
A group of women is currently suing to clarify the state’s abortion ban. A court decision is expected soon on whether the lawsuit can continue or if the law can be placed on hold as the legal battle continues.