CINCINNATI (CN) - Tennessee's ban on the recruitment of unemancipated minors to obtain out-of-state abortions without parental consent does not restrict access to abortion or violate free speech rights, the state argued Tuesday at the Sixth Circuit.
In the wake of the U.S. Supreme Court overturning Roe v. Wade in 2022, Tennessee implemented a "trigger ban" on abortions that effectively banned the procedure except in the case of certain medical emergencies.
Two years later, the Republican-controlled Tennessee Legislature passed a law that imposed criminal penalties on individuals who "intentionally recruit a pregnant unemancipated minor for the purpose of" obtaining an abortion that would be illegal in the Volunteer State.
A federal lawsuit against 11 Tennessee district attorneys followed, filed by state Representative Aftyn Behn and abortion rights attorney Rachel Welty, and the pair were granted an injunction to prevent enforcement of the law during the litigation.
In July 2025, Senior U.S. Circuit Judge Julia Smith Gibbons - sitting by designation as a district judge for the Middle District Court of Tennessee - granted Behn and Welty's motion for summary judgment on their First Amendment challenge and invalidated the law in the district.
"The provision goes beyond the content of the speech [and] favors speech that dissuades abortion over speech that encourages abortion," Gibbons said in her opinion. "This is an 'egregious form of content discrimination' that punished speech based on 'the opinion or perspective of the speaker.'"
Tennessee Solicitor General Madeline Clark argued Tuesday at the Sixth Circuit on behalf of the state and cited three reasons why Gibbons' opinion should be overturned.
Clark told the appeals panel there is no threat of enforcement against Behn and Welty, the pair has "no path to victory on the merits of the case" and the George W. Bush appointee's injunction was too broad.
She emphasized the narrow application of the law does not proscribe the abortion advocacy activity undertaken by the plaintiffs.
"Article III requires only that conduct is 'arguably proscribed' by the law," Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, interjected. "Why can't they go to court to decide what that parameters of the law are?"
"We would be happy to win this case on any front," Clark said.
Senior U.S. Circuit Judge Jane Branstetter Stranch, an appointee of Barack Obama, refocused the arguments on the individuals affected by the law.
"I don't want to lose sight of what this case is about," she told Clark.
"I'm perplexed by the distinction between predecision and postdecision speech in the law. As if there is a precise moment in time when a young girl has made probably the most difficult decision of her life. Why isn't the advice recruitment?" she asked.
"The statute requires the intentional persuasion of a minor for procuring an abortion that is illegal in Tennessee," Clark responded. "It requires the adult to have a very specific intent."
Clark emphasized her clients have maintained since the outset of the litigation that Behn and Welty's conduct does not implicate the law and that they would not enforce it against them.
Attorney Bill Powell from the Washington, D.C.-based firm Institute for Constitutional Advocacy and Protection disputed that point during his arguments on behalf of the abortion advocates.
Powell said the sponsor of the bill in the legislature specifically mentioned his clients' conduct as examples of what they targeted in the eventual law, going so far as to describe one of Behn's tweets as "what recruitment looks like."
The attorney reiterated the defendant district attorneys have never disavowed enforcement.
"It's baffling that you would seek to endorse the broadest reading of the statute," Sutton told Powell. "If we issue a decision that says this law applies to narrow circumstances, 99% of the time, that works in cases like this."
Powell pushed back and argued a narrow interpretation of the law endorsed by the panel would not hold up in state court.
In her rebuttal, Clark once again argued her clients disavowed enforcement.
"How have they disavowed it?" Stranch asked.
"It is stated in our briefing in the case," the attorney answered.
"But that doesn't bind them. What is in the record that verifies their disavowal?" Stranch persisted.
Clark argued the "in-litigation" actions of the district attorneys, as well as their silence about potential enforcement when the lawsuit was initially filed, are sufficient to constitute disavowal.
U.S. Circuit Judge Kevin Ritz, a Joe Biden appointee, rounded out the panel.
No timetable has been set for the court's decision.
Source: Courthouse News Service
