You Can 'Recruit' a Minor for an Abortion in Tennessee
A federal appeals court has permanently blocked the recruitment provision of Tennessee's "abortion trafficking" law.
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.
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.
In Tennessee, almost all abortions are criminal. 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. Its recruitment provision outlaws "recruitment for abortions that are illegal in Tennessee but legal where they take 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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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. Making this illegal violates their First Amendment rights, they argued, and the U.S. District Court for the Middle District of Tennessee agreed.
The 6th Circuit has now affirmed that lower court's ruling, saying the recruitment provision is overly broad and amounts to unconstitutional viewpoint discrimination.
This case is interesting for several reasons. It sits at the intersection of reproductive freedom and free speech—an intersection that might seem odd but is actually quite crowded. 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.
The case also involves a great example of anti-abortion politicians using inflammatory (some might say biased) language to muster support for their policies.
"Underage abortion trafficking" conjures an image of someone forcing pregnant girls to get abortions. "Recruitment" suggests that someone is aggressively marketing and selling abortions, perhaps even exerting coercive pressure.
But the law's language is much broader. 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.
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. "There may be a lot of reasons why they don't see[k] the consent of their parent. Sometimes their parent is their abuser," said Welty at a preliminary induction hearing cited in the 6th Circuit decision. She said her "goal as an advocate is never to persuade someone. It is to give them options and then let them make their own decisions."
It could be used against people like Behn, a social worker and Tennessee state representative. 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. 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.
Welty and Behn challenged the recruitment provision as it applies to obtaining (but not concealing) an 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?
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.
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.
"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:
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. 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.'"
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. Now here we are.
Cheers and Dissent
"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," said Behn in a statement posted to Facebook.
But the Sixth Circuit's Chief Judge, Jeffrey Sutton, saw things differently. 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.
"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. And in arguments in this case, the state says that this is fine. 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. "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. For the State, that means upholding the law after clarifying its narrow 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. But it's broad enough that it doesn't really preclude it.
Followup
Border searches of cellphones: Remember George Anibowei, the U.S. citizen who has been subjected to five warrantless searches of his phone by immigration agents? The Constitutional Accountability Center, the Cato Institute, and the Rutherford Institute have taken an interest in his case, as Reason's Tosin Akintola reports:
What started as a "narrow constitutional exception" now "threatens to swallow the protection it was meant only to qualify," according to an amicus brief filed last week by the Cato Institute asking the Supreme Court to reconsider a petition about warrantless searches of Americans at the border….
In another new amicus brief, the Constitutional Accountability Center argues that the border search exception runs counter to the Court's ruling in Riley, allowing federal agents to "rummage at will through the records stored on those devices," effectively giving the federal government the power to "indiscriminately search and seize the 'papers' of the people." It's a sentiment backed by the brief filed by The Rutherford Institute, which states that instead of being used to advance the sovereign interest of border security, the government has "repeatedly used the exception as a tool to violate Americans' civil liberties by capitalizing on international travel as a convenient opportunity to avoid the Fourth Amendment's warrant requirement."…
It's unclear if the Court will hear Anibowei's case. The Court denied his first petition for a writ of certiorari in 2024.
On Substack
What if phones aren't ruining romance but saving it? "Smartphones did not start the decline in dating and fertility, but they may help reverse it," writes Chelsea Olivia Follett at Past Imperfect:
Technology has long been blamed for inadvertently hindering family formation. Recent research from Northwestern University suggests the typewriter may have lowered birth rates by bringing more women into the workforce. Yet the same research also suggests the typewriter led to many "office romance" marriages—and, presumably, many children.
Today, technology continues to bring couples together. Smartphones are increasingly accused of fueling the global decline in fertility, but the evidence that smartphones reduce fertility is weaker than many think. For example, some economists point out that most of Italy's fertility decline preceded smartphone adoption.
Studies on average marital satisfaction between couples who met online and offline show mixed results, but some research suggests slightly higher marital satisfaction among the former as well as slightly less separation and divorce. Digital introductions can lead to lasting partnerships, and divorce rates are at their lowest point in half a century. That trend is driven by highly committed married millennials, many of whom met their spouse online.
Although dating apps and other online mechanisms are the leading way couples first connect, there is still significant room for improvement. Rates of couple formation (and, consequently, fertility) declined across many countries, even though most single young adults say they are aspiring toward marriage.
Follett's post goes on to explain how artificial intelligence is being used in a matchmaking capacity.
Scoop: The National Security Agency is spending billions this year on testing AI models - far more than previously known
Per a classified NSA estimate described by sources
Compute costs for AI have exploded - including for taxpayershttps://t.co/A6TmUMYJwn
— Jeff Stein (@jstein_sun) September 24, 2026
• "When I asked, a spokesperson for Customs and Border Protection…didn't deny that the agency was using facial recognition to identify sex workers," writes former U.S. diplomat Josef Burton.
• The New York Times takes a look at Amazon's drone delivery program in Texas.
• "Police wanting to use a device mimicking a cellphone tower to locate people must first get a warrant, a Fourth Circuit panel ruled Thursday," reports Courthouse News.
• The federal government is attempting to intervene in the European Commission's case against X Corp, which was fined €120,000,000 for violating the European Union's Digital Service Act. "The European Commission inappropriately attempted to expand its regulatory authority to reach American companies not present or operating within its jurisdiction," said Bretta A. Shumate, assistant attorney general of the Justice Department's civil division, in a statement.
• Sheldon Yakiwchuk parses Canada's new Safe Social Media Act: "The government doesn't have to silence anyone directly. It just has to make deleting the post cheaper than defending it."
• How recordings from home robots are being used as evidence in court.
• "In a bipartisan Senate hearing on Wednesday, Lindsey Isaacs described her harrowing legal battle stemming from the increasingly unpopular Flock Safety's automatic license plate reader (ALPR) surveillance network," reports Reason's Autumn Billings. "But without proper police accountability and oversight, law enforcement mistakes like the ones experienced by Isaacs are bound to repeat."
