CINCINNATI — In July 2025, Senior U.S. Circuit Judge Julia Smith Gibbons invalidated a Tennessee law that imposed criminal penalties on individuals who recruit minors for out-of-state abortions, ruling it violates the First Amendment. The law, passed by the Republican-controlled legislature in 2024, targeted adults who 'intentionally recruit a pregnant unemancipated minor' to obtain an abortion illegal under Tennessee law.
Gibbons, sitting by designation as a district judge for the Middle District of Tennessee, granted summary judgment to state Representative Aftyn Behn and abortion rights attorney Rachel Welty, who had filed a federal lawsuit against 11 Tennessee district attorneys. A federal court had previously issued an injunction halting enforcement of the law during litigation.
"The provision goes beyond the content of the speech [and] favors speech that dissuades abortion over speech that encourages abortion," Gibbons said in her opinion. She added that this constituted "an 'egregious form of content discrimination' that punished speech based on 'the opinion or perspective of the speaker.'"
Tennessee Solicitor General Madeline Clark appealed the ruling to the Sixth Circuit, arguing that Behn and Welty face no credible threat of prosecution and that the injunction was overly broad. Clark maintained the law requires 'very specific intent' and does not apply to the advocacy activities Behn and Welty engage in.
During oral arguments, Clark said, "We would be happy to win this case on any front." She asserted the state had consistently stated it would not enforce the law against the plaintiffs and claimed the district attorneys had disavowed enforcement in their legal briefing.
Attorney Bill Powell, representing Behn and Welty, countered that the law’s legislative sponsor had cited one of Behn’s tweets as 'what recruitment looks like,' and that the district attorneys had never formally disavowed enforcement outside of court filings.