Tennessee Is the Second State to Criminalize Minor ‘Abortion Trafficking.’ Activists Are Pushing Back.

Abortion rights activists protest after the overturning of Roe v. Wade in downtown Nashville on June 24, 2022. (Seth Herald / AFP via Getty Images)

In May, following Idaho’s lead, Tennessee became the second state in the country to criminalize the ‘abortion trafficking’ of minors. The law makes it a Class A misdemeanor—the most serious of the three categories of misdemeanors in the state—for an adult, which would include, for example, an aunt, grandmother or older sibling, to harbor, recruit or transport an minor within the state for the purposes of:

  • concealing an illegal abortion from a minor’s parents or guardians.
  • procuring an abortion that is a crime under Tennessee law, regardless of whether it is legal where performed.
  • obtaining abortion pills for an abortion that is a crime under Tennessee law, regardless of where the pills are obtained from.

Those found guilty of abortion trafficking are subject to imprisonment for a term of 11 months and 29 days—the longest permissible sentence for a misdemeanor crime under Tennessee law.

The phrase “within the state” may appear rather paradoxical, given that Tennessee has one of the strictest abortion bans in the country, making abortion virtually unavailable unless someone obtains one under a narrowly permitted exception. This means the law would serve no real function if it really took aim at in-state abortions.  

Instead, the use of this language can best be understood as an attempted strategic end-run around the uncertainty surrounding the largely unchartered legal waters of whether states have the authority to extend the reach of their criminal abortion laws across their borders. To avoid this potential quagmire, Tennessee’s trafficking law simply criminalizes the in-state portion of the journey to an out-of-state abortion provider. 

In addition to being criminally prosecuted for assisting a teen to access a legal abortion, a person can also be sued civilly for the “wrongful death” of the unborn child—doubling down on the risk posed by this law. The suit can be brought by the parents of the “trafficked teen,” the teen herself, as well as the biological father (unless the pregnancy was the result of rape or incest).

If the suit is successful, the ‘trafficker’ can be required to pay monetary damages to compensate the injured party for harms occasioned by the death of the fetus. These may include economic injuries, such as possibly the loss of future earnings, and emotional suffering. A court can also award punitive damages, which are intended to punish particularly egregious behavior. 

This law all but forecloses the availability of an escape route for teens from being forced into parenthood. The most obvious reason behind the prohibitory force of the law is the protection of a teen’s “unborn child”—defined by Tennessee law as “an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child [sic] from fertilization until birth.” 

However, the law’s exemption of a teen’s parents (or anyone who acts with their written and notarized consent) from criminal or civil liability makes clear that another agenda is also hard at work here, as this carve-out effectively gives parents the ultimate say over their pregnant child’s reproductive fate. This makes clear that a parental rights agenda is an integral component of Tennessee’s trafficking law, since they have veto power over their child’s abortion decision. 

This law all but forecloses the availability of an escape route for teens from being forced into parenthood.

Given that parents have the authority to assist their child to obtain an out-of-state abortion—which would be a challenge to do without adult assistance, since the state is bordered on all side by abortion ban or restrictive states with parental involvement laws—it appears that a parental rights agenda, rather than the protection of unborn children, is the real driver behind Tennessee’s (and Idaho’s) abortion trafficking law.

In fact, the legislative history behind the measure strongly suggests this is the case. As Rep. Jason Zachary, Republican sponsor of the law, asserted during a hearing on the bill, it was indeed intended as “an important ‘shield for parental rights.’” He explained that in “the state of Tennessee, you cannot take a child to an emergency room or any medical facility to obtain treatment without their parents’ permission if they’re under 18 … so this legislation simply says that if you are an adult, you are not allowed to take a minor who is not your child for any procedure related to an abortion without parental consent.”

While this may be the general rule, like all states, Tennessee has carved out a wide decisional space within which teens can self-consent to what is commonly referred to as “sensitive” medical care, including care related to sexual activity. Notably, prior to the state’s ban on abortion, a teen seeking to terminate a pregnancy had to first obtain the consent of either a parent or a judge by way of a judicial bypass hearing. However in cases both pre- and post-ban, a teen who instead opts to carry a pregnancy to term and then to either parent or relinquish the child for adoption can make these decisions for herself. 

This practice of subjecting teens who wish to terminate a pregnancy to a legal regime of “reproductive surveillance and control” is a powerful example of ‘abortion exceptionalism’—namely, the overregulation of abortion due to its “highly politicized and stigmatized status.” By effectively foreclosing the option of a legal out-of-state abortion, Tennessee’s abortion trafficking law brings the heightened marginalization and differential treatment of teens in abortion ban-states into particularly sharp focus.

Not only does this additional layer of overregulation exacerbate the differential treatment of teens based on their intended pregnancy outcome, it imposes an legal obstacle on abortion access for teens that is not imposed on adults. It should, of course, be noted that adults, particularly if low-income, are likely to face practical obstacles that limit access to cross-border abortion care.

Pushing Back Against the Trafficking Law

Late last month, Nashville Democratic Rep. Aftyn Behn and abortion rights attorney and activist Rachel Welty brought a lawsuit in federal district court challenging the trafficking law on constitutional grounds and asking to have it permanently enjoined. 

Rep. Aftyn Behn is the Democratic representative for District 51 in the Tennessee House of Representatives. (Courtesy)

At the heart of their case, is their argument that the law “criminalizes pure speech based on the content and viewpoint a speaker stresses” regarding access to legal abortion care for teens.

On a more granular level, they zero in on the problematic nature of the “recruitment” prohibition, which they argue “appears to criminalize advocating for and facilitating access to legal abortion care, including abortion care provided out-of-state in compliance with the laws of sovereign jurisdictions.”

As a result, they fear that they will be prosecuted if they continue their advocacy work—a fear that is heightened by the simultaneous threat of also being sued for monetary damages for the ‘wrongful’ death of the fetus—in contravention of their right to free speech. They further argue that this chilling effect on their speech right is “especially destructive” for Rep. Behn because it “interferes with her role and duty as an elected official and simultaneously violates her constituents’ right to hear and receive information from her.”

Behn and Welty do not use expressly use the frame of abortion exceptionalism in their lawsuit. However, by centering it on the criminalization of protected speech based on its “content and viewpoint,” they do so implicitly by recognizing that the trafficking law “favor[s] the Tennessee government’s antiabortion views while criminalizing opposing advocacy.”

In short, the law gives the state adds yet another layer of legal surveillance and control over the pregnant teen’s body in a devastating attempt to foreclose this disfavored pregnancy outcome in favor of pressing teens into parenthood by legal fiat. 

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Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.