Last month, in Welty v. Dunaway, a divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a universal injunction against the "recruiting" provisions of Tennessee's Underage Abortion Trafficking Act. Judge Stranch wrote for the panel, joined by Judge Ritz. Then-Chief Judge Sutton dissented, explaining that the court reached out to block the law, as it did not apply to the plaintiffs' conduct. Accordingly, there was no basis to enjoin the law's enforcement against the plaintiffs, let alone to enjoin it universally.
Judge Stranch summarized her lengthy majority opinion with this introduction:
When the Supreme Court issued Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), its decision triggered Tennessee's near-total abortion ban, which criminalizes performing an abortion at any stage of gestation, Tenn. Code Ann. § 39-15-213(b). Two years later, as part of its Underage Abortion Trafficking Act, the Tennessee legislature enacted the "Recruitment Provision," which criminalizes intentionally recruiting an unemancipated minor for purposes of obtaining an abortion that "would constitute a criminal abortion under § 39-15-213," regardless of where the abortion is procured. § 39-15-201(a). The Recruitment Provision thus purports to reach beyond Tennessee's regulation of abortion within its own borders, barring recruitment for abortions that are illegal in Tennessee but legal where they take place.
Rachel Welty and Aftyn Behn are two prominent advocates for abortion rights in the state of Tennessee, and they both regularly counsel minor Tennesseans regarding how they may obtain legal abortions. Before the Recruitment Provision went into effect, Welty and Behn filed this pre-enforcement suit against the district attorneys general in the Middle District of Tennessee, contending the provision violates the First Amendment facially and as applied. The district court granted summary judgment to Welty and Behn on the First Amendment claims, holding that the Recruitment Provision constitutes unconstitutional viewpoint discrimination as applied to them, and that it is facially overbroad. The district court then issued an injunction barring the defendants from enforcing the Recruitment Provision. It also held that the Recruitment Provision is not unconstitutionally vague. For the following reasons, we AFFIRM, without reaching vagueness.
As readers may have surmised, I found then-Chief Judge Sutton's dissent more convincing. Here is how he summarized his opinion:
The court, I fear, makes this free-speech case more difficult than it is. In 2024, Tennessee enacted a law that prohibits the "abortion trafficking of a minor." The law prohibits individuals from "intentionally recruit[ing], harbor[ing], or transport[ing]" pregnant minors living in Tennessee for one of three purposes: (1) to "conceal[]" an illegal abortion from the parents; (2) to "procur[e]" an abortion in violation of Tennessee law, whether the abortion occurs in Tennessee or elsewhere; or (3) to "obtain[]" an "abortion inducing drug" for the minor to get an abortion banned by Tennessee law.
Rachel Welty and Aftyn Behn, the two plaintiffs in the case, are abortion-rights advocates. They do not challenge the ban on harboring or transporting pregnant minors to obtain abortions banned by Tennessee law. They instead challenge only the ban on intentionally recruiting minors to obtain abortions in violation of Tennessee law, whether the minors ultimately procure the abortion in the State or elsewhere.
Yet the law does not cover their abortion counseling efforts. Welty admits that her
"goal" in speaking with minors "is never to persuade someone" to get an abortion. R.35 at 24. And Behn admits that she merely "provid[es]" minors "information so that they can make an informed decision." R.35 at 44. Their work, in short, is pro-choice, not pro-abortion. All they want to do is to continue to advocate in favor of changes to abortion policy in Tennessee and to provide counseling—information that would inform the individual's decision whether to obtain an abortion—to pregnant minors and adults. On the other side of the case sits the State of Tennessee and its district attorneys. They agree that the plaintiffs' past abortion counseling and planned future counseling do not violate the statute. Leaving no room for doubt, they disclaim any desire to prosecute the plaintiffs under the new law for their counseling and information providing activities.
Yet this violent agreement about the narrow scope of the law has somehow prompted a decision by the court to invalidate it universally—which is to say on its face, across the board, in all of its applications. How could a case that barely amounts to a "case" under Article III and one that a skilled mediator ought to be able to resolve in two hours lead to a ruling of unconstitutionality and a form of relief—a universal injunction—that the U.S. Supreme Court just one year ago called a "sweeping" overreach? Trump v. CASA, Inc., 606 U.S. 831, 843 (2025). Because I see consensus where the court sees conflict, because the best reading of the statute permits plaintiffs' counseling speech and actions, and because at all events longstanding constitutional avoidance principles require us to minimize rather than maximize any potential constitutional conflict, I would resolve this case by giving both parties what they want. For the plaintiffs, that means they may continue to do the only things they claim an interest in doing, because the law does not apply to mere advocacy and counseling but only to intentionally recruiting Tennessee children—at a minimum inducing them—to obtain abortions banned by Tennessee law. For the State, that means upholding the law after clarifying its narrow scope. While we judges often lament the heated political conflicts of our times, we sometimes miss opportunities to lower that temperature rather than to increase it.
The question now is whether this decision will be reviewed en banc.
