Concerns over free speech grow as abortion travel ban heads to Tennessee governor's desk

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Some free speech advocates are raising the alarm over wording in a new Tennessee bill that could potentially restrict a person's right to speak about abortion health care.

The law, passed by Tennessee lawmakers this year, makes it a felony to recruit or transport a minor for an illegal abortion without parental consent.

HB1895, which will soon head to Gov. Bill Lee’s desk, closely mirrors a recent law passed in Idaho, which a federal judge halted on First Amendment grounds.

Rep. Jason Zachary R-Knoxville, presents SB 1971 during a House session at Tennessee Capitol in Nashville, Tenn., Tuesday, April 23, 2024.
Rep. Jason Zachary R-Knoxville, presents SB 1971 during a House session at Tennessee Capitol in Nashville, Tenn., Tuesday, April 23, 2024.

The legislation targets an adult who "recruits, harbors or transports" a pregnant minor within the state for the purposes of receiving an illegal abortion, defined by Tennessee's near-total abortion ban, or for getting abortion medication without notarized consent from the minor’s parents.

Free speech concerns from opponents of the bill are heavily centered on the word “recruit,” which is not defined in Tennessee state law, and which they say could potentially criminalize speaking to a pregnant minor about health care options.

“This bill raises concerning First Amendment issues, as the term recruits is not defined in the bill or anywhere in the Tennessee code,” said Bryan Davidson, policy director at the American Civil Liberties Union of Tennessee.

“The free expression implications are troubling. It's easy to imagine that there could be a reproductive health clinic or a clinician, non-medical counselor or a social worker, anybody who provides information or options around abortion care and counseling to pregnant minors in Tennessee, who could potentially have their free speech rights infringed upon.”

James Bopp Jr., the general counsel for the National Right to Life Committee, which helped draft model legislation on the issue, called the First Amendment concerns unfounded.

“There's no confusion about that,” he said in an interview, adding that “nobody thinks” that the word “recruit” could include “just posting information” or speaking about abortion.

Travel-ban law is slippery slope part of larger pattern, say opponents

The concern over the limitation on free speech rights under the bill is not new. In Idaho in late 2023, lawmakers passed a nearly identical law to Tennessee’s version.

The law was quickly temporarily paused by a federal judge after three plaintiffs — a lawyer and two medical advocacy groups — sued Idaho alleging the law’s language is overly vague and violates their First Amendment right to discuss abortion with minors and their Fourth Amendment right to travel between states where the procedure is legal.

Sen. Paul Rose, R-Lauderdale, and Rep. Jason Zachary, R-Knoxville, sponsors of the legislation, did not respond to multiple requests for comment.

Rep. Aftyn Behn, D-Nashville, has been one of the most vocal opponents of the bill.

Standing on the sidewalk in downtown Broadway on April 10, Behn, along with members of Abortion Care Tennessee, held a large sign aloft emblazoned with bright purple letters reading “Need an abortion? We’re here to help.”

She later described the law as “dystopian.”

“I believe that this is a test case for what is deemed constitutionally protected in an increasingly polarized kind of authoritarian environment we're seeing nationally," she said.

According to Behn, when asked about the definition of the word recruit, Zachary suggested looking the word up in a dictionary.

Rep.Aftyn Behn, D- Nashville, looks to Rep. Jason Zachary R-Knoxville, while he defends SB 1971 during a House session at Tennessee Capitol in Nashville, Tenn., Tuesday, April 23, 2024.
Rep.Aftyn Behn, D- Nashville, looks to Rep. Jason Zachary R-Knoxville, while he defends SB 1971 during a House session at Tennessee Capitol in Nashville, Tenn., Tuesday, April 23, 2024.

“Zachary was asked by my colleagues as to how he would define the word recruit,” she said. “And he generically pointed to a dictionary and said, ‘As it is in the dictionary.’ Which, you know, any dictionary, any definition is pretty broad as to what remains. And when you're dealing with a civil liability of up to a million dollars and jail time, it seems to be pretty important to know what the word recruit means.”

Behn said the concern was echoed by multiple medical professionals who spoke against the bill.

“We had a few practicing pediatricians and obstetricians comment that even them talking to minors in a grocery store might be illegal,” she said. “They weren't clear, for example, if they had a neighborhood minor that came up to them and said, ‘I'm pregnant, we're having issues,’ and whether they, as a trusted adult, would be protected under the law.”

Behn said the bill highlights how Tennessee is “on the front lines of the most extreme, post-Roe, anti-abortion legislation,” with some of the strictest abortion laws in the country.

“I think this is a test case, and it's trying to penetrate the parameters of what is protected by the First Amendment,” she said. “And I think this case will go to the Supreme Court and inevitably, whatever government is in charge at the time, will prevent free speech from happening.”

On the House floor, moments before the bill was approved, Behn attempted to pass a number of amendments to it, including one that sought to protect discussions of health care options by “trusted adults” — which included a number of health care workers, abortion clinic staff or volunteers, attorneys and more — from being held criminally liable, as long as they were not “forcing the minor” to obtain an abortion.

The amendments failed.

Davidson of the ACLU said his organization is “watching the bill,” with special attention on the key differences in Tennessee’s bill that, in his view, make it more vague than Idaho’s.

“There is a key difference in our version of the bill versus the one that was (paused) in Idaho is that the Idaho statute requires concealment from the minor’s parent or guardian as an element overall,” he said. “Whereas the Tennessee statute does not require concealment. So the criminal offense in our version applies to a much broader array of activity, and I think contributes to an even more concerning sense of vagueness.”

Davidson said this broader level of vagueness is what concerns the legal experts at the ACLU.

“They're so vaguely written that it's unclear how the law would be applied and enforced,” he said. “But what we see is that just the threat of enforcement is enough to stoke fear and confusion and leads to self-censorship that has the ultimate effect of limiting access to vital reproductive health care to folks that need it most.”

Anti-abortion advocate dismisses free speech concerns

Both the Tennessee law and the Idaho law are based on model legislation written by the National Right to Life Committee — the nation’s largest anti-abortion organization that lobbies legislatures to end abortion access.

Bopp developed the model legislation these bills are based on and said concerns over vagueness in the bill’s language — particularly the word “recruit” — are unfounded.

When asked why a key word in his bill did not need defining, Bopp reiterated that concerns over a lack of definition were “a complete lie.”

“That's complete bulls***,” he said. “There are all sorts of words that are used in statutes that are not defined. So that's just complete bulls***. If their argument is there's not a definition in state law, then you look to the common dictionary definition. … The Supreme Court, most of the time, is looking at dictionaries to determine the meaning of words that are in statutes and have never struck down a statute based on vagueness, because a word was not defined in a statute.”

Upon inspecting court records, there have been numerous major U.S. Supreme Court cases that ruled certain laws as being “unconstitutionally vague” due to words not being defined, and references to the importance of clarity in laws dating back as far as James Madison’s Federalist Papers.

When asked how he defined the word “recruit,” written in his own model legislation for the travel ban, Bopp read the definition of the word from and gave an example of what he considered illegal recruitment — an example that included speech activity.

“You can see in the that it says ‘to recruit’ means ‘to get someone to join something,’ and the something here is to participate in an unlawful abortion,” he said. “You know, to go on campus and say, ‘Hey, come on with us. We will take you to in our car to go get an unlawful abortion.’”

Bopp said he did not think the word needed clarifying in bills emulating his legislation, which can be seen working their way through legislatures in numerous states.

“’Recruit’ is more specific than just providing information,” he said. “The common definition of recruit is quite adequate.”

Bopp said opponents are “just making (concerns) up because they're abortion advocates and trying to use the First Amendment as a weapon.”

William Brewer, head legal counsel and lobbyist for the Tennessee chapter of Right to Life, declined to comment on the free speech concerns but said the bill was “needed to protect underage girls from being taken for a surgical procedure or given dangerous chemicals without their parent’s knowledge or consent.”

Chemicals routinely used in abortion procedures, almost exclusively mifepristone and misoprostol, have been rated as safe by the U.S. Food and Drug Administration for 24 years.

Definitions are crucial to understand legality, says expert

Battling encroaching limitations on free speech is imperative to protecting the freedoms within the First Amendment for all, whether those limitations come through intentionally restricting legislation or from vaguely worded laws, said Kevin Goldberg, a First Amendment lawyer at the Freedom Forum in Washington, D.C.

The confusion in this law over the word “recruit” is a prime example, he said.

“I do think this is vague as written,” he said. “If you put the law in front of more than one person, and they come to clearly different results as to what it means, it's probably vague. And if it's clearly vague, it could be void — ergo unconstitutional and unenforceable.”

The reason laws are often deemed void for vagueness is twofold, he said.

“The first reason we have this ‘void for vagueness’ doctrine is because laws of this type essentially deny due process rights, which is actually a part of the 14th amendment,” he said. “The point is that I need to know that I'm going to get in trouble and be given certain protections that allow me to defend myself. I need to be fully informed that I am going to get in trouble or not based on what I'm about to do.”

Laws addressing speech issues that are too vague essentially deny citizens the ability to know whether they are allowed to speak, said Goldberg.

“The second reason is that vague laws tend to be prone to arbitrary enforcement,” he said. “So you might have a pamphlet put out about abortion by a pro-life group and a pamphlet put out by a pro-choice group, and they may look relatively similar and may even both provide information that could fall under what somebody believes is recruitment. And law enforcement may punish only one because they can manipulate the meaning of the term recruit in the statute."

Gregory Magarian, a law professor at Washington University School of Law in St. Louis and a former Supreme Court judicial clerk, noted that even including the word "recruit" in the law was an unusual choice.

"We can look to a dictionary definition and find the meaning of the word recruit, but when you look at it in the context of this statute, it's a sort of curious usage," Magarian said. "We don't normally think of 'recruiting' someone to get a medical procedure done, even if we're talking about an elective medical procedure. If I told you I thought you might benefit from plastic surgery, we wouldn't say that I recruited you to get plastic surgery. That's a really strange and non-intuitive use of the word. And so that's why it's really important to define words within their statutory context."

Magarian added that the persistence of lawmakers, in addition to the original writers of the bill, to not clarify the word recruit or add more defining language to the bill, could chill speech.

"It would certainly make sense from the standpoint of the legislature to avoid this problem by defining the term clearly," he said. "So that sort of opens up the question, 'Well, why didn't they do that?' Why didn't the sponsor on the floor not clarify this? The sort of cynical possibility is that they wanted this term to be vague — and in the free speech context, the reason that we don't like vagueness is the chilling effect on speech. It makes people self-censor. Maybe in this case, the legislature wanted to chill speech around abortion.

"The less sinister possibility is that (lawmakers) just really didn't know what they were doing and what they were enacting because it was a model legislation they picked up," he said. "It might seem politically expedient, at least before you start thinking about the constitutional implications."

Regardless of intentions, placing the onus on the person speaking to “try to figure out” whether they may break the law by speaking is simply not allowed under the constitution, Goldberg said.

“Just pointing to the fact that a word is in the dictionary and saying, ‘Well, anybody can look it up and know what it means,’ isn't a valid argument at all,” he said. “This law is going to have to either be rewritten with language directed to a definition of recruit — they're going to have to take more time on it, or the courts are going to have to deal with it.”

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

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This article originally appeared on Nashville Tennessean: Tennessee abortion: Free speech concerns grow over travel ban bill