This case may show that Judge Sutton could agree the ruling is not merely mistaken but also deserving of en banc review.
Last month, in Welty v. Dunaway, a split panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a nationwide injunction targeting the “recruiting” provisions of Tennessee’s Underage Abortion Trafficking Act. The opinion for the panel was written by Judge Stranch and joined by Judge Ritz. The then-Chief Judge Sutton dissented, arguing that the court had stepped beyond the bounds of the dispute because the law did not regulate the conduct of the plaintiffs themselves. Consequently, there was no justification to enjoin the law’s enforcement against the plaintiffs, much less to issue a universal injunction.
Judge Stranch began the majority’s lengthy articulation with this frame:
When the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), that ruling set off Tennessee’s near-total ban on abortion, criminalizing the doing of an abortion at any point in gestation, Tenn. Code Ann. § 39-15-213(b). Two years later, as part of the Underage Abortion Trafficking Act, Tennessee lawmakers enacted the “Recruitment Provision,” which makes it a crime to deliberately recruit an unemancipated minor for the purpose of obtaining an abortion that “would constitute a criminal abortion under § 39-15-213,” regardless of where the abortion is carried out. § 39-15-201(a). In effect, the Recruitment Provision seeks to extend Tennessee’s reach beyond its own borders, prohibiting recruitment for abortions that are illegal in Tennessee but lawful where they occur.
Rachel Welty and Aftyn Behn are two leading advocates for abortion rights in Tennessee, and they routinely advise minors on how they may obtain legally entitled abortions. Before the Recruitment Provision took effect, Welty and Behn filed this pre-enforcement suit against the district attorneys general in the Middle District of Tennessee, contending that the provision violates the First Amendment both facially and as applied. The district court granted summary judgment in favor of Welty and Behn on the First Amendment claims, finding 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 enforcement of the Recruitment Provision. It also concluded that the Provision is not unconstitutionally vague. For the reasons that follow, we AFFIRM, without reaching vagueness.
As one might anticipate, I found the then-Chief Judge Sutton’s dissent more persuasive. Here is how he captured his position:
The court, I fear, makes this free-speech case more complicated than necessary. In 2024, Tennessee enacted a law prohibiting the “abortion trafficking of a minor.” The statute forbids individuals from “intentionally recruit[ing], harbor[ing], or transport[ing]” pregnant minors who reside in Tennessee for one of three aims: (1) to conceal an illegal abortion from the parents; (2) to procure 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 obtain an abortion banned by Tennessee law.
Welty and Behn, the plaintiffs in the case, are advocates for abortion rights. They do not challenge the prohibition on harboring or transporting pregnant minors to obtain abortions that Tennessee prohibits. Their challenge is solely to the ban on intentionally recruiting minors to obtain abortions in violation of Tennessee law, regardless of where the abortions are ultimately performed.
Yet the statute does not govern their counseling efforts. Welty concedes that her aim when speaking with minors is “never to persuade someone” to have an abortion. Behn likewise concedes that she simply “provides” minors with information so they can make an informed choice. In short, their work is pro-choice, not pro-abortion. Their objective is to continue advocating for changes to Tennessee’s abortion policy and to offer counseling—information that helps individuals decide whether to obtain an abortion—to pregnant minors and adults. On the other side are Tennessee and its district attorneys. They acknowledge that the plaintiffs’ past abortion counseling and planned future counseling do not violate the statute. They make clear that they have no intention to prosecute the plaintiffs for their counseling and information-sharing activities under the new law.
Yet this unlikely concord about the exact scope of the law somehow prompted a court to strike it down in all its applications—on its face, across the board. How could a dispute that barely qualifies as a case under Article III and a matter that a capable mediator could resolve in a couple of hours produce a ruling of unconstitutionality and a form of relief—the universal injunction—that the Supreme Court characterized a year ago as a sweeping overreach? Trump v. CASA, Inc., 606 U.S. 831, 843 (2025). Because I find agreement where the court detects conflict, because the statute’s best reading permits the plaintiffs’ counseling speech and actions, and because the enduring rule of constitutional avoidance counsels restraint rather than expansion, I would decide this case by granting both sides what they seek. For the plaintiffs, that means permission to continue engaging in the sole activities they claim to value—speech and counseling that do not constitute mere advocacy but step into recruiting Tennessee minors—at least insofar as such conduct involves obtaining abortions banned by Tennessee law. For the State, it means upholding the law once its narrow scope is clarified. While we judges often lament the fervor of contemporary political battles, we sometimes miss chances to cool tensions rather than inflame them.
The lingering question now is whether this ruling will be reviewed en banc.
