NASHVILLE, Tenn. (WKRN) — One provision of Tennessee law that prohibits "abortion trafficking" has been struck down in federal court.

Senior U.S. Circuit Judge Julia Gibbons, acting in a designated capacity as a U.S. District Judge for the Middle District of Tennessee, said the law includes an unconstitutional prohibition on speech that cannot be enforced in the state.

Specifically, Gibbons said the "recruitment" provision of the law "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," Gibbons wrote in her opinion.

The suit was brought by Nashville Democratic State Rep. Aftyn Behn and family law attorney Rachel Welty, both listed as "advocates of abortion rights in Tennessee" in the opinion.

They sought to "counsel pregnant, unemancipated minors" in the state to help get them access to legal abortion in other states following the 2022 Dobbs v. Jackson Women's Health Organization decision from the U.S. Supreme Court that overturned abortion access nationwide.

Because Tennessee's abortion trafficking law prohibited anyone from "recruiting" minors, Behn and Welty sued over the law before it went into effect, arguing that provision constituted content and viewpoint discrimination, which is prohibited under the First Amendment.

The state claimed counseling minors about abortion access in other states counted as contributing to criminal activity, since abortion is prohibited in Tennessee; Behn and Welty argued giving people information about legal procedures in states that don't have the same restrictions on abortions as Tennessee was not criminal activity.

The court agreed with Behn and Welty, saying in part Tennessee lawmakers could not criminalize "disseminating information about an activity that is legal in [another] [s]tate."

"Because plaintiffs promote only legal abortions, the speech integral to crime exception does not apply and plaintiffs' speech remains protected," Gibbons wrote in her opinion.

Rep. Behn issued a statement celebrating the ruling, saying in part the law criminalized protected speech.

"We won this lawsuit on First Amendment grounds because the Constitution is clear—speech is protected. The court recognized that the government cannot silence us for offering support, sharing information, or speaking out about issues with which the Republican supermajority disagrees. This is a critical victory not just for Tennesseans but for anyone who believes in the right to speak freely without fear of state retaliation."

State Rep. Aftyn Behn, co-plaintiff

Welty also issued a statement on the ruling:

Free speech is one of the most basic rights that needs to be protected at all costs. With that comes the need to protect advocates and attorneys who help and guide others by giving them information and advice to help them better their lives. We are excited that this win may help reproductive justice workers in our state breathe easier knowing the work they do can continue to have positive impacts on others without the risks of personal liability.

Rachel Welty, co-plaintiff

News 2 has reached out to state Republicans on the ruling.

News Source : https://www.wkrn.com/news/tennessee-politics/part-of-state-abortion-trafficking-ban-struck-down-in-federal-court/