NASHVILLE, TN — The U.S. Court of Appeals for the Sixth Circuit on Thursday struck down Tennessee’s abortion “recruitment” provision. The court affirmed a permanent injunction and held that the 2024 law violates the First Amendment both as applied to State Representative Aftyn Behn (D-Nashville) and attorney Rachel Welty, and on its face. The law made it a crime, punishable by a mandatory 11 months and 29 days in jail, to “recruit” a pregnant minor to obtain an abortion banned in Tennessee “regardless of where the abortion is to be procured.” That reached abortions that are fully legal in other states.
Writing for the majority, Judge Jane B. Stranch found that the law discriminates by viewpoint, punishing speech that supports a legal abortion while leaving the other side untouched. The court noted that the State never argued the law could survive strict scrutiny. It also rejected any notion that Tennessee can police speech about health care that is legal in other states, calling that idea “a shocking proposition.” The injunction protects every Tennessean, not only the two plaintiffs.
The ruling comes the same week Attorney General Jonathan Skrmetti’s investigative demands against reproductive health organizations became public. Planned Parenthood of Tennessee and North Mississippi went to court Wednesday to block his demand for donor details, provider information, and patient records, and Abortion Care Tennessee disclosed a similar demand earlier this week.
Rep. Aftyn Behn, co-plaintiff:
The Sixth Circuit held what the Constitution has always required: the State of Tennessee cannot criminalize speech about topics the Republican Supermajority and the Attorney General’s office deems iniquitous, and it cannot export its abortion ban across state lines to regulate conduct its own laws do not govern. And, what a remarkable contradiction…for two years, the AG’s office told a federal court that sharing information about abortion fell outside the law. Now that same office is demanding donor records, patient files, and the names of the organizational staff who draft organizations’ public materials? The First Amendment protects the freedom to speak, to associate, and to fund speech without the government building a list of who’s involved. Using investigative power to chill protected activity is not a workaround to a constitutional ruling, it is the same constitutional problem in a different form. I dedicate this win to the courageous frontline abortion workers and organizers in the South, our attorneys who took the risk in taking this case, and every organization and stakeholder who wrote amicus briefs in support of our cause including state Attorney Generals who are on the right side of history.
Daniel Horwitz, attorney for the plaintiffs:
This is a resounding victory for Ms. Welty, Representative Behn, and every Tennessean who believes the government has no business prosecuting people for sharing truthful information. The Sixth Circuit’s thoughtful and well-reasoned opinion reaffirms that viewpoint discrimination has no place in a free society and that no government has authority to criminalize pure speech simply because it dislikes a speaker’s point of view. Based on today’s ruling, Tennesseans remain free to speak truthfully about legal abortion options without fear that crusading District Attorneys will try to prosecute them for it.
Rachel Welty, co-plaintiff:
I’m grateful that the Court of Appeals affirmed our victory. Young people facing difficult decisions deserve accurate information, compassionate support, and the freedom to make their own choices. This ruling protects every advocate and medical provider’s ability to speak openly with them about legal options without fear of prosecution. I’m proud to have stood with Aftyn Behn to defend that right.
Behn and Welty filed suit in June 2024, before the law took effect. During the legislative debate, the bill’s sponsor had cited a post by Behn as an example of “what recruitment looks like.” They are represented by Horwitz Law, PLLC, and the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. The case is Welty v. Dunaway, Nos. 25-5738/5739.
