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When Abortion Bans Meet the First Amendment: Insights from Welty v. Dunaway

In the recent case of Welty v. Dunaway, the U.S. District Court for the Middle District of Tennessee issued a ruling that brings significant attention to the intersection of free speech and abortion rights.

The decision in Welty v. Dunaway comes at a really strange moment in the ongoing battle over reproductive rights in the United States, particularly in the aftermath of the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization. That decision, which overturned the nearly 50-year precedent set by Roe v. Wade, allowed states to impose their own abortion laws without federal constitutional constraints. In the wake of Dobbs, many states, particularly in the South and Midwest, moved swiftly to implement or strengthen abortion bans. Tennessee was no exception, enacting some of the country’s most stringent restrictions, including a near-total ban on abortion procedures. However, Welty v. Dunaway does not simply address Tennessee’s abortion ban; instead, it tackles newer legal battleground laws aimed at regulating speech and conduct related to abortion access across state lines.

In 2024, Tennessee enacted a law known as the abortion trafficking law, which criminalizes certain actions involving the facilitation of abortions for minors, even when those abortions are performed legally in other states. The law specifically targets individuals who “recruit, harbor, or transport” unemancipated minors for the purpose of obtaining an abortion. What makes this law particularly contentious is that it applies not only to abortions that would be illegal in Tennessee but also to legal abortions performed in states where the procedure remains available. This means that individuals who assist minors in accessing out-of-state abortions could face criminal penalties under Tennessee law.

This broad scope raised alarms and prompted the plaintiffs to argue that it infringed on free speech rights by criminalizing advocacy and assistance for minors seeking lawful abortions in other jurisdictions. Plaintiffs Rachel Welty, an attorney, and Aftyn Behn, a social worker and state legislator, challenged the law on constitutional grounds, seeking a preliminary injunction to block its enforcement. The court ultimately ruled in their favor, finding that the law’s “recruitment” provision violates the First Amendment and is unconstitutionally vague. Welty and Behn brought the case because they feared prosecution under the new law. Rachel Welty is an attorney who assists people, including minors, in accessing abortion care, and she expressed concern that her work (such as providing information about legal abortions available in other states) could lead to charges of “recruitment” under this new law. Aftyn Behn, a state representative, is a vocal supporter of abortion rights and regularly receives inquiries from individuals across Tennessee about how they can legally obtain abortion services. Both plaintiffs argued that the law was unconstitutionally vague and violated their First Amendment rights by chilling their ability to communicate openly about abortion access.

Judge Aleta A. Trauger’s opinion addressed several key legal issues, including First Amendment protections, vagueness, and overbreadth. The heart of the court’s decision lies in the application of First Amendment principles. Judge Trauger ruled that the recruitment provision of law constitutes a content-based restriction on speech, as it targets speech based on its subject matter: abortion. The court cited longstanding Supreme Court precedent that content-based regulations are presumptively invalid and must pass strict scrutiny, meaning they must be narrowly tailored to serve a compelling state interest. The court found that Tennessee’s interest in protecting the wellbeing of minors and preserving parent-child relationships, while legitimate, was not sufficiently compelling to justify the broad restrictions on speech. Moreover, the court observed that the law was not narrowly tailored. Instead of specifically targeting harmful conduct such as coercion or trafficking, the recruitment provision broadly criminalized speech that could persuade or assist a minor in obtaining a lawful abortion in another state. This, the court held, violated the First Amendment by chilling lawful speech and advocacy.

In addition to its First Amendment ruling, the court found the recruitment provision to be unconstitutionally vague. A law is considered vague if it fails to provide a person of ordinary intelligence fair notice of what conduct is prohibited or if it is so standardless that it invites arbitrary enforcement. The term “recruit,” as used in this case, was not clearly defined, leaving individuals like Welty and Behn unsure about whether their activities, such as providing information about out-of-state abortion services, would subject them to criminal liability. Judge Trauger noted that neither the legislators who passed the law, the prosecutors tasked with enforcing it, nor the state attorneys defending it seemed to have a clear understanding of what constitutes “recruitment” under the statute. The law’s vagueness, the court concluded, opened the door to arbitrary and discriminatory enforcement, particularly against abortion rights advocates. The court also agreed with the plaintiffs’ claim that the law was overbroad. Under the First Amendment’s overbreadth doctrine, a law can be invalidated if it prohibits a substantial amount of constitutionally protected speech in relation to its legitimate applications. The recruitment provision, by criminalizing speech that facilitates legal abortions in other states, reached far beyond any legitimate state interest in regulating abortion within Tennessee’s borders.

Based on these findings, the court granted a preliminary injunction to prevent the enforcement of the recruitment provision. The court emphasized that the plaintiffs had demonstrated a strong likelihood of success on the merits of their constitutional claims. Additionally, the court found that the plaintiffs would suffer irreparable harm if the law were enforced, as it would inhibit their ability to communicate about lawful abortion services: a core First Amendment right. The injunction extends beyond just Welty and Behn, barring the enforcement of the recruitment provision against anyone, not just the plaintiffs. The court justified this broad relief by recognizing that the chilling effect of the law on free speech would extend to anyone engaged in similar advocacy or communication. Limiting the injunction to just the plaintiffs, the court reasoned, would fail to fully protect their rights, as the free flow of information about abortion access requires that others be able to freely share and spread their message without fear of prosecution.

The decision illustrates the limitations on state power to regulate speech about otherwise lawful activities, even when the state has a strong interest in restricting the underlying conduct. While Tennessee has the authority to ban most abortions within its borders following the Dobbs decision, it cannot use that authority to criminalize speech about legal abortions available elsewhere. The ruling also highlights the courts’ role in safeguarding constitutional rights in the face of increasingly restrictive state laws. The case may set an important precedent for future challenges to similar laws in other states, particularly those that seek to curb speech regarding minors. For now, this preliminary injunction ensures that individuals in Tennessee, including minors, can still receive information about and assistance in accessing legal abortion services in other states – at least until the law is either revised or further reviewed by higher courts.


János Tamás Papp, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary and a research expert at the National Media and Infocommunications Authority of Hungary. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University where he has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”

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