In Welty v. Dunaway, (6th Cir. Sept. 24, 2026), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional both as applied and on its face a provision of Tennessee law that criminalizes recruiting a minor for purposes of obtaining an abortion, even if the abortion is to be performed in another state where it is legal. The law was challenged by two anti-abortion activists who regularly counsel minors seeking abortions. The majority, in a 45-page opinion, said in part:
As applied to Welty and Behn, the Recruitment Provision restricts their ability to speak freely about abortion; it is therefore a content-based regulation that is presumptively unconstitutional….
… The Supreme Court’s recent decision in Chiles is instructive on this point. Chiles concerned an as-applied challenge by a mental health counselor to a Colorado statute proscribing mental health professionals from engaging in conversion therapy with minors….
... [T]he statute expressly allowed mental health professionals to provide “acceptance, support, and understanding for the facilitation of an individual’s identity exploration and development,” as well as “assistance to a person undergoing gender transition.”… The only question before the Court in Chiles was whether this statute was subject to strict scrutiny, and the Court concluded that it was, because it discriminated based on content and ... viewpoint….
Like Chiles, Welty and Behn regularly counsel minors. But when one of their minor clients seeks guidance regarding her pregnancy, the Recruitment Provision “regulates how [Welty and Behn] may respond.”… Nothing in Tennessee’s law would prevent them from encouraging a minor to carry her pregnancy to term.... But the Recruitment Provision does restrict Welty’s freedom to share with clients her view that abortion is “safe, common and normal.” It likewise prevents her and Behn alike from supporting and encouraging their clients’ decisions to obtain legal abortions and sharing information about how they may do so….
… [T]he Recruitment Provision discriminates based on content as well as the viewpoint of the speaker…..
… [T]he Recruitment Provision is unconstitutional as applied to speakers who seek to encourage and support minors to obtain legal abortions. This represents a substantial portion of speech to which the statute might apply... Such applications could include the speech of adults who occupy a virtually limitless range of roles in a pregnant minor’s life (except her parents or legal guardians), as long as they encourage her to obtain a legal abortion. These adults could be an aunt or uncle, grandparent, older sibling, teacher, school counselor, therapist, physician, pastor, youth minister, family friend, mentor, or anyone else a pregnant minor might encounter or herself seek out whose speech might impact her decision. As the adage goes, it takes a village to raise a child. Anyone in that village is capable of “recruit[ing]” her to obtain a legal abortion….
By its own terms and under Tennessee law, the Recruitment Provision could also apply to out-of-state residents who recruit minor Tennesseans to obtain legal abortions elsewhere….
Because “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep,”... we hold that the Recruitment Provision is substantially overbroad and facially unconstitutional….
Chief Judge Sutton filed a 28-page dissenting opinion, saying in part:
… Welty and Behn’s abortion counseling and advocacy, in their own words, do not include efforts to induce Tennessee minors to obtain abortions without their parents’ knowledge, within the State or outside the State. In providing information about abortion options and in allowing minors to “make [their] own decision[s],” … they are committed pro-choice advocates. But they do not, in the words of the statute, claim to “intentionally” “recruit[]” minors to obtain abortions or otherwise engage in abortion “trafficking” of minors without parental consent….
That should be the end of this case, and it should take less than ten pages to say so…. In the absence of a limitation on the words they plan to use, their free-speech case disappears….
All of this back and forth returns us to one mystery of this case already mentioned and identifies another. The one: Why won’t Welty and Behn and the court simply agree to eliminate any risks to their work by supporting and announcing a decision that the Act does not cover anything the plaintiffs have done in the past or wish to do in the future? The other: Does the court think there is any way to write a law that bans “abortion trafficking of a minor” without violating the First Amendment?...
Welty and Behn perceive unconstitutional vagueness in “recruiting,” which they say breaks the boundaries of clarity. This argument collides with the Act’s text, which not only prohibits recruiting but also requires that the recruiting be “intentional[]” and “for the purpose of” concealing or obtaining an abortion for the minor…. A word that is already clear, plus a mental state that clarifies it still further, provides all the notice that citizens need….
... A litigation loss for Welty and Behn, it’s worth adding, would amount to a “real-world win.”... Such a decision, it is true, would not enjoin the Act. But such a decision, it is also true, would lead to a federal court ruling that the Act does not apply to the activities that Welty and Behn want to undertake. That is difficult to describe as a loss.
The Tennessean reports on the decision.
[Thanks to Thomas Rutledge for the lead.]
