Abortion Trafficking Ban Allowed to Take Effect in Tennessee

Abortion advocates can’t dodge a Tennessee law that bars any adult from recruiting, transporting, or harboring a minor for purposes of getting a legal abortion without their parents’ knowledge and consent, two federal judges said.

In separate cases, Judges Aleta A. Trauger, of the US District Court for the Middle District of Tennessee, and Sheryl H. Lipman, of the US District Court for the Western District of Tennessee, denied advocates’ motions for temporary restraining orders to halt enforcement of SB 1971. The June 28 orders both said the plaintiffs waited too long to bring the motions.

Tennessee lawmakers passed the abortion trafficking ban on April 24 and Gov. Bill Lee (R) signed it on May 28, but Rachel Welty and Aftyn Behn didn’t file their motion until June 26—just two business days before the law’s July 1 effective date, Trauger said. This left the district attorney defendants with little time to respond, she said.

Trauger concluded that the the doctrine of laches barred Welty and Behn’s request for a temporary restraining order. Laches is an equitable remedy that applies when a party’s lack of diligence leads to a prejudicial delay.

The delay in filing the suit was “strongly suggestive of a lack of diligence, if not a litigation tactic,” Trauger said. It was also prejudicial, Trauger said.

The issues presented in the case were “novel and complex,” the judge said. “The power of a state to skirt the limitations of its territoriality is among the most delicate questions in our constitutional system,” Trauger said. The recruitment provision’s constitutionality, moreover, hinges to a large extent on whether the plaintiffs’ communications can be categorized as pure speech—an “abstract and challenging concept,” she said.

Lipman similarly denied a TRO requested by SisterReach Inc. and Midwest Access Coalition Inc. on June 27 against Tennessee Attorney General Jonathan Skrmetti and others. These plaintiffs challenged the entire law, saying it was unconstitutionally vague in violation of the 14th Amendment, criminalized or chilled speech in violation of the First Amendment, and was overbroad.

The judge accepted the plaintiffs’ representation that their delay in filing suit was due to “logistics, not gamesmanship,” but the bill became law almost a month before the filing date, Lipman said. SB 1971 “hardly came out of nowhere,” she said.

The plaintiffs failure to give notice of their motion to all the named defendants, as required by a federal procedural rule, moreover, was “particularly problematic” given the “complex and weighty” constitutional issue at stake, Lipman added.

Lipman scheduled a July 12 hearing on the plaintiffs’ motion for a preliminary injunction, while Trauger scheduled a hearing for Aug. 21.

Tennessee’s law is similar to one in Idaho, which is currently under consideration by the US Court of Appeals for the Ninth Circuit.

Horwitz Law PLLC represents the Welty plaintiffs. Donati Law Firm LLP represents the SisterReach plaintiffs. The Tennessee Attorney General’s Office represents the defendants in both cases.

The cases are Welty v. Dunaway, 2024 BL 222244, M.D. Tenn., No. 24-768, 6/28/24; SisterReach, Inc. v. Skrmetti, W.D. Tenn., No. 24-cv-2446, 6/28/24.