Court Strikes Strikes Down Tennessee Law Banning "Recruit[ing]" Pregnant Minors to Get Abortions, Including Legal Out-of-State Abortions

From Sixth Circuit Judge Julia Gibbons, sitting by designation on M.D. Tenn., in today's Welty v. Dunaway:

[A Tennessee law, § 39-15-201,] makes it a crime to "intentionally recruit[ ] … a pregnant unemancipated minor" in Tennessee "for the purpose of" obtaining an abortion that would be illegal in Tennessee. But § 39-15-201 does not merely bar recruitment of minors to facilitate illegal abortions in Tennessee; it bars recruitment of minors to facilitate abortions "regardless" of where the procedure occurs. In other words, the law prohibits recruiting an out-of-state abortion that is entirely legal in that state, so long as it would be illegal in Tennessee….

Section 39-15-201 contains a few exceptions, including one for "the provision of a medical diagnosis or consultation regarding pregnancy care of an unemancipated minor," as long as that consultation does not involve an actual attempt to terminate the pregnancy or arranging for travel to do so. The statute also exempts four classes of individuals: a pregnant minor's parent or legal guardian; a person who has obtained consent from such parent or guardian; common carriers transporting passengers in the ordinary course of business; and emergency medical personnel acting within the course of their duties. The statute contains no exception, however, for family members besides parents or guardians—an unemancipated minor's aunt or uncle, adult sibling, or grandparent could be prosecuted for "recruiting" the minor to procure an abortion….

The court concluded that "recruiting" including persuasion:

The ordinary meaning of "recruit," while broad, is sufficiently clear "to give ordinary people fair notice of the criminalized conduct." Certain speech is almost certainty prohibited recruitment under the provision: for example, a pregnant minor's 20-year-old sister, hoping to persuade her younger sister to obtain an abortion, says, "if I were in your shoes, I would get an abortion" and then tells her where to obtain an out-of-state abortion.

And, given this, the court concluded that the prohibition was unconstitutional:

Section 39-15-201 prohibits speech encouraging lawful abortion while allowing speech discouraging lawful abortion. That is impermissible viewpoint discrimination, which the First Amendment rarely tolerates—and does not tolerate here….

Defendants do not contest that the recruitment provision is a content- or viewpoint-based restriction. In fact, in some parts of their brief, they appear to concede the very point. They argue instead that this is permissible because "much of the speech covered by the Act is unquestionably incident to criminal conduct." But plaintiffs' intended speech seeks only to recruit minors for purposes of obtaining a legal abortion. Thus, plaintiffs' speech cannot be speech integral to crime. And, for the reasons discussed, it is protected speech. The recruitment provision therefore regulates plaintiffs' speech because of its message—"that abortion is safe, common and normal" and available in certain states—and is presumptively unconstitutional. And defendants fail to show—indeed, they do not even argue—that the law survives strict scrutiny….

The statutory language and the legislative record confirm that the recruitment provision is directed at recruitment of lawful abortions. The recruitment provision criminalizes speech encouraging or persuading minors to obtain abortions "regardless" of where they occur, so long as they are illegal in Tennessee. The statute's fiscal note also shows that the recruitment provision was chiefly aimed at speech inducing minors to obtain legal, out-of-state abortions. It contemplates future prosecutions only in relation to abortions in states "where abortion is legal in some capacity." The law's sponsor, when asked about the recruitment provision, suggested it would apply to Planned Parenthood's recent conduct "recruiting children … across state lines" and to Behn's tweet, offering to transport minors "out of state." …

[T]he defendants argue that the recruitment provision validly applies to "speech intended to induce or facilitate the 'harboring' or 'transporting' of a minor within this State for the purpose of obtaining an elective abortion without parental consent." Speech incident to an act of harboring or transporting a Tennessee minor to obtain an illegal abortion would be unprotected. See U.S. v. Hansen. But such speech is rare compared with speech incident to an act of harboring or transporting a Tennessee minor to obtain a legal abortion. And the latter is protected speech—the recruitment provision cannot constitutionally proscribe it….

In September, Judge Aleta Trauger had issued a preliminary injunction blocking enforcement of the law, and that is now on appeal to the Sixth Circuit.

Daniel A. Horwitz, Melissa Kathleen Dix, and Sarah L. Martin (Horwitz Law, PLLC) represent plaintiffs.