Tennessee’s government cranks out a lot of stupid laws. It’s been doing it for years, but things have accelerated recently as the state’s legislators seek to curtail rights for, well, pretty much everyone but white men. It has enacted book bans, anti-trans laws, and the Supreme Court’s Dobbs decision triggered its long-dormant anti-abortion law.
But it wasn’t enough to simply forbid women from getting abortions in the state. The government felt it must prevent residents from traveling to state where abortions are still legal to have the procedure performed. And that still wasn’t enough. The state also enacted an “abortion trafficking” law that forbade people from discussing out-of-state abortion options with minors. Fuck free speech, said the state. We simply can’t allow an unregulated marketplace of ideas, not when there are females to oppress.
Fortunately, that law is now dead, thanks to two tenacious plaintiffs (social services consultant Rachel Welty, state legislator Aftyn Behn) and their equally tenacious lawyer, Daniel Horwitz, who has done more than his fair share of dismantling unconstitutional rulings and laws. The federal court decision [PDF] opens up with an explanation of the “abortion trafficking” law, highlight exactly where the law goes wrong when it comes to regulating speech.
Recently, Tennessee enacted a so-called “abortion trafficking” law (“Chapter 1032”) that purports to forbid certain actions taken in connection with access to an abortion by an unemancipated minor—including, specifically, “recruit[ing]” such a minor “for the purpose of . . . procuring” an abortion. Tenn. Code Ann. § 39-15-220(a). If Tennessee had chosen to limit that prohibition to abortions performed illegally in Tennessee, then that enactment would likely have been within the tradition of prohibitions on speech facilitating unlawful acts. The Tennessee
General Assembly, however, chose to take the extraordinary step of attempting to outlaw any
“recruit[ment] . . . [of] a pregnant unemancipated minor within this state for the purpose of . . . [p]rocuring an act that would constitute a criminal abortion [in Tennessee] for the pregnant unemancipated minor, regardless of where the abortion is to be procured.” Tenn. Code Ann. § 39-15-220(a)(1) (emphasis added). Tennessee, in other words, has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal.
That’s a big problem. It’s big enough the legislators pushing the bill must have been aware of it. Almost certainly they were. The court says this is an extremely easy call for it to make. The next paragraph opens up very bluntly.
It cannot do so.
Here’s why:
Tennesseans are Americans, and, as Americans, every state in the nation is presumptively open to them. It is, therefore, a basic constitutional fact—which Tennessee has no choice but to accept—that, as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans. Because obtaining an abortion out of state is a lawful option, moreover, Tennessee cannot make it a crime to communicate freely about that option.
This isn’t the legislative equivalent of rocket science. But the legislators chose to ignore these obvious facts because they thought they might get away with it, at least for a little while. And a little oppression is better than no oppression.
Intolerance and hate make people stupid. This stupidity is most notable when it involves people with enough power to make their stupidity plainly apparent.
No one associated with Chapter 1032 seems to have a particularly clear picture of what the provision is supposed to prohibit—not the prosecutors who will be called on to enforce it; not the state attorneys called on to defend the statute in court; and, it seems, not even the individuals who drafted the provision itself, who appear to have simply pulled the recruitment-focused language from other, preexisting statutes in which that language makes more sense. Whatever it means to “recruit” a person to receive a lawful abortion, however, such recruitment would inherently involve First Amendment-protected speech, meaning that the recruitment provision is subject to the ordinary restrictions that the First Amendment imposes.
And so it goes for several more pages. The law is simply indefensible. It cannot possibly be constitutional, no matter how much time and other people’s money the state is willing to throw away trying to defend it. However, they couldn’t be bothered to personally confront the potential outcomes of this abhorrent law. Almost all of the government’s defense was done via filings and court appearances by the state’s lawyers. Even when given a chance to avoid the lawsuit by simply stating in writing the law would not be enforced in the manner the plaintiffs sued over, they refused to respond.
Of course, the DAGs could simply explain that they are not, in fact, planning to enforce Chapter 1032 in the manner that Welty and Behn fear. That brings the court to the fourth Frisch factor—a refusal to disavow enforcement—which, in this instance, strongly supports a finding of standing. The defendants have had an unusual number of opportunities to explain how they will or will not enforce the statute. Welty sent them letters, and she gave them plenty of time to respond—so much time that it ultimately interfered with her ability to obtain a temporary restraining order. Nevertheless, the defendants completely ignored her. The defendants could have explained that refusal at the court’s hearing, but not one defendant even attended, let alone testified. At the hearing, the court made very clear that its consideration of the case would benefit from some shred of evidence regarding the defendants’ intentions—even simply signed declarations confirming that the lawyers representing them are accurately representing the defendants’ understanding of the statute. Still, however, they provided nothing.
That’s pretty ugly. That’s an extremely shitty blend of arrogance and cowardice. The government officials don’t like being challenged and appear to believe responding directly to the court and/or the plaintiffs is beneath them. Their refusal to make personal appearances also strongly suggests they’re not willing to be directly confronted by the likely victims of their unconstitutional law.
This inaction doesn’t help the state. It only makes it easier for the court to find in favor of the plaintiffs and issue an injunction.
The court finds that Welty and Behn are entitled to, and will receive, an injunction against all enforcement of the recruitment provision by the defendants against any party. The court does not reach that conclusion simply because this is an overbreadth challenge, but because such relief is necessary to prevent Welty’s and Behn’s own irreparable injuries. This is a case about the free flow of information, and it would be naive to think that the plaintiffs’ injuries can be addressed simply by preventing the application of the recruitment provision to them and them alone, while leaving their messages to die on the vine because no one else can pass them along.
The closing paragraphs forcefully drive the point home:
The freedom of speech guaranteed by the First Amendment is not simply a special protection that the Constitution grants to a few, high-profile speakers so that those speakers can hear themselves talk; it is a protection available to everyone, for the interconnected benefit of everyone, because messages do not gain their fullest power by being uttered, but by being spread.
Welty and Behn do not just have a right to speak their message; they have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech—just freedom of a few speakers to address a silenced populace.
The law is blocked, but it’s as good as dead. Most likely, the state will appeal this decision. But this ain’t the Fifth Circuit so it’s unlikely to fall into the lap of a judge who thinks the First Amendment only applies to speech they agree with. The other option the state has to do the fastest, cheapest thing: strike the law from the books. But legislators who like wielding power more than they like respecting rights never take the easy way out. They just delay the inevitable since it costs them nothing to do so.