An adult who helps an underage girl get a surgical or chemical abortion in Tennessee will be liable to criminal prosecution and a civil lawsuit for wrongful death starting July 1 if a new law enacted this week takes effect.

The new Class C felony, called “abortion trafficking of a minor,” applies to an adult who “recruits, harbors or transports” a pregnant girl 17 or younger within the state for the purpose of procuring an abortion. It does not apply to the parents or legal guardian of the underage girl. 

A Class C felony in Tennessee carries a prison sentence of between three and 15 years and may carry a fine of up to $10,000. 

Abortion is already illegal in Tennessee except to preserve the life of the mother or “prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman,” according to a statute enacted in April 2023. Tennessee is one of 14 states that have enacted a near-total ban on abortion since the U.S. Supreme Court overturned Roe v. Wade in June 2022 and returned abortion law to legislatures and state referendums.

Tennessee Gov. Bill Lee signed the abortion-trafficking bill into law on Tuesday, May 28. 

The Republican-dominated Tennessee Legislature passed the bill by large margins in April — 25-4 in the state Senate and 74-24 in the state House of Representatives.

Supporters of the measure say it’s needed to protect girls from feeling pressured to have an abortion by adults who may not have their best interests at heart. 

“Parents have a right to be involved with their daughters’ well-being. The abortion industry has no right to keep parents in the dark at a time when their daughters are so vulnerable and could possibly be in danger,” said Stacy Dunn, president of Tennessee Right to Life, in a written statement obtained by CNA.

“This law will go a long way in protecting young girls from predators who want to cover their crimes and from an abortion industry that exploits young girls for profit,” Tennessee Right to Life lobbyist Will Brewer said in a written statement.

Opponents of the measure say it’s a harmful restriction on what they consider a right to abortion. 

The American Civil Liberties Union of Tennessee, which supports legal abortion, calls the new law an “abortion travel ban.”

“It is absurd and cruel to force a pregnant young person to navigate laws and systems that are designed to deprive them of their own bodily autonomy while simultaneously removing the ability for trusted adults to provide guidance and support when they need it most,” states an April 29 letter from the organization’s policy director, Bryan Davidson, that urged the governor to veto the bill.

Similar Idaho Law in Limbo

Tennessee is the second state in the country to enact an abortion trafficking ban after Idaho, which enacted a similar measure in April 2023. 

A federal judge in November 2023 blocked enforcement of the Idaho statute, issuing a temporary restraining order against it after opponents, including two organizations that support abortion and a lawyer who helps underage girls get abortions, challenged it in court.  

Opponents argued in court papers filed in July 2023 that the Idaho law unconstitutionally restricts travel between states and within states and that it violates the First Amendment of the U.S. Constitution by infringing on the right “to engage in expressive conduct, including providing monies and transportation (and other support) for pregnant minors traveling within and outside of Idaho to access out-of-state legal abortion care.” 

They also argued that some underage girls seek abortions because they were sexually abused by a parent or guardian or because they are victims of human trafficking for sex and, therefore, consult with “trusted adults who support their position.” 

In support of the Idaho statute, the state attorney general’s office argued in court papers in September 2023 that the U.S. Constitution “protects the rights of parents to not only make those medical decisions for their children” but also to be with their children when they are getting medical attention. The state attorney general’s office also argued that Idaho ought to be immune from being sued in federal court over the state statute under the federal Constitution’s 11th Amendment, which limits the ability to sue states in federal courts.

U.S. Magistrate Judge Debora Grasham in her decision blocking enforcement of the law called the Idaho statute “unconstitutionally vague” and said it violates freedom of speech.

“The state can, and Idaho does, criminalize certain conduct occurring in its own borders such as abortion, kidnapping, and human trafficking. What the state cannot do is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights,” Grasham wrote in the decision dated Nov. 8.

Federal magistrate judges are appointed by federal district court judges to four-year or eight-year terms. They help with caseloads.

The Idaho attorney general’s office has appealed the decision. The case is pending.