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.
