Full Opinion

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 26a0271p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ RACHEL WELTY; AFTYN BEHN, │ Plaintiffs-Appellees/Cross-Appellants, │ │ v. > Nos. 25-5738/5739 │ │ BRYANT C. DUNAWAY; JASON LAWSON; JENNINGS │ HUTSON JONES; ROBERT J. CARTER; RAY WHITLEY; │ ROBERT J. NASH; GLENN R. FUNK; STACEY │ EDMONSON; BRENT COOPER; RAY CROUCH; HANS │ SCHWENDIMANN, │ Defendants-Appellants/Cross-Appellees. │ ┘ Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:24-cv-00768—Julia Smith Gibbons, Circuit Judge, sitting by designation as a United States District Judge for the Middle District of Tennessee. Argued: June 2, 2026 Decided and Filed: September 24, 2026 Before: SUTTON, Chief Judge; STRANCH and RITZ, Circuit Judges. _________________ COUNSEL ARGUED: Madeline W. Clark, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants/Cross-Appellees. William Powell, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION, Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: Madeline W. Clark, J. Matthew Rice, Aaron L. Bernard, Matthew D. Cloutier, Steven J. Griffin, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants/Cross-Appellees. William Powell, Elizabeth R. Cruikshank, Shelby Calambokidis, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION, Washington, D.C., Daniel A. Horwitz, HORWITZ LAW, PLLC, Nashville, Tennessee, for Appellees/Cross-Appellants. Matthew F. Kuhn, Caleb B. Childers, Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 2 OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, B. Tyler Brooks, Thomas More Society, Chicago, Illinois, Andrew Beck, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Sarah A. Hunger, OFFICE OF THE ILLINOIS ATTORNEY GENERAL, Chicago, Illinois, Bryce Ashby, DONATI LAW, PLLC, Memphis, Tennessee, Hunter C. Branstetter, SHERRARD ROE VOIGT & HARBISON, PLC, Nashville, Tennessee, Charlene O. Yim, David C. Ware, Emily R. Sauer, Emma S. Eisendrath, GIBSON, DUNN & CRUTCHER LLP, New York, New York, Kylee Sunderlin, IF/WHEN/HOW: LAWYERING FOR REPRODUCTIVE JUSTICE, New York, New York, Courtney Dankworth, DEBEVOISE & PLIMPTON LLP, New York, New York, Mary A. Parker, PARKER & CROFFORD, Brentwood, Tennessee, for Amici Curiae. STRANCH, J., delivered the opinion of the court in which RITZ, J., joined. SUTTON, C.J. (pp. 46–73), delivered a dissenting opinion. _________________ OPINION _________________ JANE B. STRANCH, Circuit Judge. 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, Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 3 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. I. BACKGROUND Since the Supreme Court issued Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the state of Tennessee has criminalized “perform[ing] or attempt[ing] to perform an abortion” at any stage of gestation. Tenn. Code Ann. § 39-15-213(b). Tennessee’s abortion ban has one narrow exception, which requires, among other conditions, a “serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” § 39-15-213(c). A. Welty’s and Behn’s Abortion-Rights Advocacy Plaintiffs Welty and Behn are prominent abortion-rights advocates in Tennessee. Welty is an attorney in Nashville who operates her own family law practice with a particular focus on child advocacy. A major component of Welty’s practice has been advocating for abortion access and helping minors obtain legal abortions. For a five-to-six-year period before Dobbs, Welty’s practice included representing minors seeking to obtain judicial bypass authorization, a mechanism that formerly allowed minors to obtain legal abortions without parental consent in Tennessee under the state’s pre-Dobbs abortion regulations. After Dobbs, Welty has counseled minors regarding their options for obtaining abortions notwithstanding Tennessee’s abortion ban. Welty does not inquire into whether the minors she counsels have parental consent to seek abortions because, as she testified, “[i]t can be really dangerous for minors in regard to the care that they are trying to get. There may be a lot of reasons why they don’t see[k] the consent of their parent. Sometimes their parent is their abuser.” R. 35, Prelim. Injunction Hr’ing Tr., PageID 357. Welty testified that her “goal as an advocate is never to persuade someone. It is to give them options and then let them make their own decisions.” R. 35, PageID 374. She is aware, Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 4 however, that her counseling has sometimes resulted in pregnant minors choosing to seek legal abortion services. When asked whether she was aware “that providing [minors with] accurate information is persuasive to some of them,” Welty responded, “Absolutely . . . the fact that they are communicating and being advocated for by someone like me could increase the likelihood they choose abortion.” R. 35, PageID 381. When a minor does choose abortion, Welty “support[s] and encourage[s] that decision,” including by “connecting them with resources whether it’s . . . financial donations” or information about out-of-state clinics or obtaining abortion pills. R. 35, PageID 359, 374–75. She is committed to continuing to help minors access legal abortions, regardless of whether they have parental consent, because she believes that “[m]inors need to be able to make these decisions for themselves and be able to access routine, safe abortion care.” R. 35, PageID 358. Welty is a board member of Abortion Care Tennessee (ACT), a fund that raises money for block grants that it gives to out-of-state abortion clinics, where the grants are earmarked to pay for Tennessee residents to obtain abortion services. ACT provides resources including online literature and handouts that detail ways for Tennesseans to obtain legal abortions; these resources represent that abortion is “safe, common and normal.” R. 35, PageID 359. When Welty counsels minors regarding their abortion options, she often refers them to these ACT resources and likewise expresses the view that abortion is safe, common, and normal. Welty has also engaged in various forms of public-facing abortion-rights advocacy related to her work with ACT. She has distributed ACT handouts to state legislators “[a]ny time [she goes] to the state legislature for any reason,” as well as to members of the public, including by leaving them “around different places” like “bathrooms of bars.” R. 35, PageID 367. She has traveled with ACT for advocacy events at places teens and young adults frequent, such as retail stores and festivals, where she distributes the same handouts. She has “show[n] up to a lot of marches and . . . given speeches,” and spoken with “a lot of reporters.” R. 35, PageID 369. She stated that minors have been in her audiences and have “definitely” received her messages. After the Dobbs decision was leaked, she started a social media account “[t]o provide information to Tennesseans about abortion care,” including information about accessing abortion pills. R. 35, PageID 369. Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 5 Behn is a licensed social worker, a political organizer, and the elected representative of Tennessee House District 51, which includes downtown Nashville. As a social worker, Behn counsels pregnant clients about their options, including abortion. Her primary goals while counseling clients are to support their well-being and promote self-determination in their decisions. Sometimes, Behn concludes that having an abortion is in her client’s best interest, “[i]n circumstances such as rape or incest, [or] if the health of the mother is at risk,” in which case she considers it her ethical obligation to communicate that assessment to her client. R. 35, PageID 394. Behn communicates that abortion is in a client’s best interest by, as she testified, providing them information so that they can make an informed decision and ensuring that the space that I offer and the professional advice is one that doesn’t make them feel less than or [unvalued], or that harm will come from this decision. I try to leave it as open and inclusive a space as possible so that they feel they have met the decision to the best of their ability. R. 35, PageID 394. When a client does choose abortion, Behn validates and supports the decision, including by directing the client to resources and offering information about how to obtain a legal abortion. Behn understands her “responsibilities and roles” as social worker and elected representative to be “intrinsically tied.” R. 35, PageID 393. As an elected official, she is a vocal advocate for abortion rights and is often contacted by Tennesseans within and outside of her district regarding abortion access. She is regularly “solicited by families across the State asking about the legal status of abortion access in Tennessee and how they can access truthful and accurate information about the resources that exist.” R. 35, PageID 389. For instance, when a mother in Williamson County called out of concern for her pregnant daughter, Behn provided the mother with information about accessing out-of-state abortion services. When constituents and other Tennesseans reach out to Behn’s office to learn about abortion access for Tennessee residents, she does not inquire about their ages, but she believes some are minors. She is often asked about abortion when she speaks at press conferences and other public events. Behn also uses social media to express her views and inform her constituents about abortion access. Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 6 B. Tennessee Enacts the Recruitment Provision In 2024, two years after the state’s abortion ban went into effect, the Tennessee legislature enacted the Underage Abortion Trafficking Act, which includes the following “Recruitment Provision”: An adult commits the offense of abortion trafficking of a minor if the adult intentionally recruits . . . a pregnant unemancipated minor within this state for the purpose of: ... (2) Procuring an act that would constitute a criminal abortion under § 39-15-213 for the pregnant unemancipated minor, regardless of where the abortion is to be procured; or (3) Obtaining an abortion-inducing drug for the pregnant unemancipated minor for the purpose of an act that would constitute a criminal abortion under § 39-15-213, regardless of where the abortion-inducing drug is obtained. Tenn. Code Ann. § 39-15-201(a) (2024). The full text of § 39-15-201(a) contains three operative verbs, “if the adult intentionally recruits, harbors, or transports . . .,” but Welty and Behn do not challenge the harboring or transporting prongs. R. 1, PageID 1–5.1 The Recruitment Provision does not apply to the “parents or legal guardian of the unemancipated minor,” or any “person who has obtained the written, notarized consent of the unemancipated minor’s parent or legal guardian.” § 39-15-201(c)(1)–(2). Violating the Recruitment Provision is a misdemeanor that carries a mandatory sentence of eleven months and twenty-nine days. § 39-15-201(b). The statute further provides that a person who violates the Recruitment Provision “may be held liable in a civil action for the wrongful death of an unborn child who was aborted,” which may be brought by the “parent or guardian of the unemancipated minor”; the minor herself (the “biological mother of the unborn child”); or the “biological father of the unborn child,” unless the pregnancy resulted from his commission of one of several 1The statute also describes three “purpose[s]” for which recruitment is prohibited, the first of which is “[c]oncealing an act that would constitute a criminal abortion under § 39-15-213 from the parents or legal guardian of the pregnant unemancipated minor,” § 39-15-201(a)(1); Welty and Behn do not challenge the concealing provision either. R. 1, PageID 1–5. Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 7 enumerated crimes. § 39-15-201(e). The Recruitment Provision went into effect on July 1, 2024. § 39-15-201. While the Act was pending before the Tennessee legislature, Behn opposed it and spoke out against it on social media. At one point, for instance, Behn stood on Broadway, a densely populated street in downtown Nashville that is in her district, with a sign that read, “Need an abortion, ask me for help.” She also posted this message on Twitter: “I welcome the opportunity to take a young person out of state who wants to have an abortion even if it lands me in jail.” R. 1-5, Behn Tweet, PageID 40. During the legislative debate on the bill, its sponsor, representative Jason Zachary, referred specifically to Behn’s post as an example of “what recruitment looks like.” R. 1-6, House Tr., PageID 61. When she spoke about her advocacy during this period, Behn testified, “I wanted young people, Tennesseans, to understand that I was a safe person and that I was willing to risk my privilege and power as an elected official to support them in seeking abortion care.” R. 35, PageID 399. Welty, for her part, stopped posting on social media after the Recruitment Provision passed because, as she testified, “the landscape started [to] change a little bit and it started to feel like there was criminalization of my advocacy.” R. 35, PageID 370. C. Procedural History On June 6, 2024, plaintiffs’ counsel sent a demand letter to the district attorneys general for the Middle District of Tennessee (the “District Attorneys”). R. 1-4, Ex., PageID 25–27. The letter (1) described Welty’s counseling and advocacy-related conduct, (2) expressed concern that “any reasonable interpretation of the [Recruitment Provision] appears to criminalize pure speech and advocacy—a viewpoint-based speech restriction”; and (3) demanded that the District Attorneys “disavow all enforcement of [the Recruitment Provision] against Ms. Welty once the law takes effect” by June 20, 2024. R. 1-4, PageID 26–27. Tennessee concedes that the District Attorneys did not respond. Defs.’s Third Br. 21. Then, on June 24, 2024, shortly before the Recruitment Provision went into effect, Welty and Behn brought suit in the Middle District of Tennessee, naming the District Attorneys. Welty and Behn alleged that the Recruitment Provision violates the First Amendment both facially and Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 8 as applied to them, and that it is unconstitutionally vague. They moved for a preliminary injunction, which the district court granted after a hearing, enjoining the defendants from enforcing the Recruitment Provision “other than in connection with obtaining or attempting to obtain an actually unlawful abortion.” R. 41, Order, PageID 587–88. In the same order, the district court granted in part and denied in part a motion to dismiss, dismissing Welty’s claims against some of the defendants. The District Attorneys, who are represented by the state of Tennessee in this litigation, filed an interlocutory appeal of these rulings and moved to stay proceedings at the district court pending resolution of that appeal.2 Welty and Behn then moved for summary judgment on all claims. The district court denied the motion for a stay, and the District Attorneys filed their own motion for summary judgment. The district court proceeded to rule on the parties’ cross-motions. It held that the Recruitment Provision is unconstitutional as applied to Welty and Behn and on its face, but that it is not unconstitutionally vague. Pursuant to its First Amendment rulings, the district court issued an injunction enjoining the defendants “from enforcing § 39-15-201(a)’s recruitment provision.” R. 81, Mem. Op. & Order, PageID 1131–32. The parties have filed timely cross- appeals of all rulings. II. LEGAL STANDARDS Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At the summary judgment stage, courts must view the record evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. See Chapman v. UAW Loc. 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc). A district court’s summary judgment decision is reviewed de novo. McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). We review a district court’s decision to grant or deny permanent injunctive relief, as well as its fashioning of such relief when granted, for an abuse of discretion. See eBay Inc. 2 Following the final judgment that is now before the court, we dismissed the interlocutory appeal as moot. Welty v. Dunaway, 145 F.4th 628 (6th Cir. 2025). Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 9 v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); United States v. Miami Univ., 294 F.3d 797, 806, 820 (6th Cir. 2002). “A district court abuses its discretion when it relies on clearly erroneous findings of fact or when it improperly applies the law.” Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 317 (6th Cir. 2001). III. ANALYSIS Tennessee challenges three aspects of the district court’s decision on appeal: (1) its holding that Welty and Behn have standing, (2) its holding that the Recruitment Provision violates the First Amendment, and (3) the scope of the district court’s injunction. Because we will affirm on the merits of the First Amendment issues, we need not reach Welty and Behn’s protective cross-appeal regarding their vagueness claim. A. Standing To establish Article III standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Daunt v. Benson, 956 F.3d 396, 417 (6th Cir. 2020) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). An injury means the “invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent.’” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). In a pre-enforcement suit where a plaintiff contends she faces imminent criminal prosecution under the challenged law, she may satisfy the injury requirement by demonstrating “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). In this appeal, Tennessee confines its standing arguments to the second and third prongs of the pre-enforcement injury inquiry (whether the statute proscribes Welty’s and Behn’s conduct and whether they face a credible threat of prosecution under it); it does not contend the district court erred in concluding that the remaining elements, including traceability and Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 10 redressability, are satisfied. We will nonetheless address every element, as federal courts have an independent obligation to assure themselves that Article III standing exists. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006). 1. Intent to Engage in Conduct Affected with a Constitutional Interest To satisfy the first prong of the injury analysis, Welty and Behn must intend to engage in “a course of conduct arguably affected with a constitutional interest.” Susan B. Anthony List, 573 U.S. at 159 (citation modified). Welty and Behn have already engaged, and intend to continue engaging, in a course of conduct that involves advocating for abortion access, sharing information with Tennesseans about how to obtain legal abortions, and one-on-one counseling with clients or constituents about abortion care. Welty’s counseling conduct includes telling clients abortion is “safe, common, and normal” and, when a client does choose abortion, “support[ing] and encourage[ing] that decision.” R. 35, PageID 359. Behn likewise “support[s] and encourage[s]” her clients when “they make [an] informed decision to obtain an abortion,” including by “validat[ing]” a client’s decision to have an abortion when Behn determines, using her “clinical judgment,” that a legal abortion is in the client’s “best interest.” R. 35, PageID 393–95. This conduct is speech that readily satisfies the standard of being “arguably affected with a constitutional interest.” Susan B. Anthony List, 573 U.S. at 159. The Supreme Court has recognized various forms of speech about abortion as protected under the First Amendment, including political advocacy expressing opposition to abortion, Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 469–70 (2007); print advertisements in a Virginia newspaper concerning the availability of legal abortions in New York, Bigelow v. Virginia, 421 U.S. 809, 821–22 (1975); and “close, personal conversations” on public sidewalks adjacent to Planned Parenthood clinics intended to dissuade women from obtaining abortions, McCullen v. Coakley, 573 U.S. 464, 487 (2014). Because Welty’s and Behn’s conduct resembles these recognized forms of protected speech, it satisfies the first prong of the pre-enforcement injury inquiry. The dissent repeatedly mischaracterizes Welty’s and Behn’s advocacy work and the scope of their legal challenge, often asserting without any citation to the record that Welty and Behn admit or agree to something they do not. The lack of record support for several of the dissent’s claims hampers examination of our respective positions and impedes a more fulsome Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 11 response to the dissent. For example, the dissent summarily concludes without citation that the parties are in “violent agreement about the narrow scope of the law” and that “the claimants and the court accept that other anti-trafficking laws do not violate the free-speech rights of anyone.” Dissenting Op. at 47, 53. And again when it represents that the information Welty and Behn share about abortion options remain “free of influence in either direction.” Dissenting Op. at 59. But on this claim, the record readily demonstrates the exercise of influence: Behn states that she “support[s]” and “encourage[s]” her clients when “they make [an] informed decision to obtain an abortion,” including by “validat[ing]” a client’s decision to have an abortion when Behn determines, using her “clinical judgment,” that a legal abortion is in the client’s “best interest.” R. 35, PageID 393–95. 2. Intent to Engage in Proscribed Conduct This prong asks whether Welty’s and Behn’s intended conduct is “arguably . . . proscribed by [the] statute.” Susan B. Anthony List, 573 U.S. at 159 (citation modified). This inquiry requires at least some preliminary construction of the challenged law. The word “arguably” is crucial, however, as we have instructed that courts should not wade too far, or too precisely, into the merits of what a statute means when evaluating standing in pre-enforcement suits: “at the pre-enforcement stage, [the plaintiff] need not prove conclusively that its intended course of conduct violates the [statute] but only that it is arguably proscribed by the statute.” Friends of George’s, Inc. v. Mulroy, 108 F.4th 431, 437 (6th Cir. 2024) [hereinafter Friends] (citing Davis v. Colerain Township, 51 F.4th 164, 172 (6th Cir. 2022); Susan B. Anthony List, 573 U.S. at 162).3 Tennessee argues that the constitutional avoidance canon prevents the Recruitment Provision from applying to Welty’s and Behn’s conduct, but such reasoning has no place in the standing inquiry. In Kentucky v. Yellen, we pointed out that constitutional avoidance is “of 3The District Attorneys contend that Friends stands for the contrary proposition that a court must determine precisely what the statute proscribes before proceeding with this element of the standing analysis. This argument misapprehends our reasoning in Friends. In that case, it was not arguable that the plaintiffs’ intended conduct would be proscribed by the challenged statute because their theory of that proscription was directly contradicted by a prior decision of the Supreme Court of Tennessee. See Friends, 108 F.4th at 435–37 (discussing Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993)). Welty and Behn are not advocating for a construction of the statute that is contrary to any existing precedent of the Supreme Court of Tennessee. Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 12 minimal importance to . . . justiciability” for several reasons, including that “for standing purposes, we accept as valid the merits of appellees’ legal claims.” 54 F.4th 325, 349 n.16 (6th Cir. 2022) (citation modified). Yellen further instructed that it would be inappropriate for us, at the justiciability stage, to render a merits interpretation of the [challenged law] and to then declare based on that merits interpretation that the controversy is not even justiciable. After all, if [the law] when “given one construction” would establish jurisdiction and would defeat it when “given another,” then the plaintiff has established jurisdiction. Id. (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)) (citation modified). So, do Welty and Behn intend to engage in conduct that is arguably proscribed by the Recruiting Provision? In Matsumoto v. Labrador, the Ninth Circuit invalidated an Idaho statute containing language that is similar to the Recruitment Provision. 122 F.4th 787, 794–95 (9th Cir. 2024); see Idaho Code § 18–623 (2023).4 As Matsumoto explained, parsing several dictionary definitions, “[t]he ordinary meaning of the verb ‘recruit’ is to seek to persuade, enlist, or induce someone to join an undertaking or organization, to participate in an endeavor, or to engage in a particular activity or event.” Id. at 808. The record indicates that Welty and Behn intend to engage in speech that encourages pregnant, unemancipated minors to have legal abortions, including by providing specific information about how Tennessee residents can obtain legal abortions. Welty and Behn are aware that their speech may persuade their clients or constituents to choose abortion, and they support and encourage a minor’s decision to obtain an abortion, even though they generally do not begin these conversations with the specific goal of convincing the minor to come to that decision. This speech also involves the communication of Welty’s and Behn’s views in support of abortion access, such as Welty’s view that abortion is 4The Recruitment Provision and the Idaho statute the Ninth Circuit invalidated in Matsumoto are similar in some respects but not others. Chief among their differences is that Idaho Code § 18–623 requires an “intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor” for all the conduct it criminalizes, whereas Tennessee Code § 39-15-201(a) does not include an intentional concealment element for violations of all its provisions. Tennessee’s version incorporates intentional concealment only as a separate offense under the statute, § 39-15-201(a)(1), which is not at issue in this case; it does not include intentional concealment as an element of the Recruitment Provision (§§ 39-15-201(a)(2) and (a)(3)). What the statutes have in common, though, is the key concept of recruitment for out-of-state abortions: like the Recruitment Provision, Idaho Code § 18–623 criminalizes “recruiting” a “pregnant minor within” Idaho to obtain an abortion, even if “the abortion provider or the abortion-inducing drug provider is located in another state.” Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 13 “safe, common, and normal.” R. 35, PageID 359. Such speech arguably constitutes “intentionally recruit[ing]” “a pregnant unemancipated minor within [Tennessee] for the purpose of” procuring an abortion. § 39-15-201(a). Tennessee attempts to evade this conclusion by fashioning an arbitrary distinction between “pre-decision” and “post-decision” speech.5 Tennessee also contends that Welty’s and Behn’s intended conduct cannot satisfy the Recruitment Provision’s scienter requirement. These arguments are unconvincing for related reasons. Tennessee’s pre- and post-decision binary treats a decision to seek an abortion—an incredibly weighty and personal choice—as if it happens at a discrete, specific moment in time. But the record reflects that this decision is a dynamic process that may occur over the course of a conversation, or that may solidify only through personal, private reflection after a conversation concludes. When Behn determines that abortion is in a client’s best interest, such as “[i]n circumstances such as rape or incest, [or] if the health of the mother is at risk,” she uses her counseling skills to convey that determination gently. R. 35, PageID 394–95. The record does not reflect that Behn ever simply tells a client, “I think you should have an abortion,” at which point the client immediately becomes convinced. When a minor client does choose abortion, Welty and Behn encourage that decision and provide practical information about how the minor can obtain one legally, such as by seeking treatment in one of a select number of abortion-protective states—perhaps in a specific clinic that receives ACT funding. Such speech, too, arguably constitutes recruitment prescribed by the statute, as it may persuade the listener to obtain an abortion by a specific means. See Matsumoto, 122 F.4th at 809–10. This sense of the word is consistent with common usage; for instance, a young college graduate may have decided that she wants to be a lawyer, but she may nonetheless be “recruited” to pursue her legal education at Vanderbilt. By categorizing and then dismissing such conduct as “post-decision,” Tennessee’s argument conveniently discounts Welty’s and Behn’s speech in the moments when the record suggests their intent to persuade minors to obtain legal abortions is at its clearest and most powerful. This element of standing is satisfied. 5The dissent adopts the same framing to argue the Recruitment Provision does not apply to Welty and Behn, Dissenting Op. at 60–61, even though it elsewhere frames recruitment as a nearly imperceptible first step on the way to harboring and trafficking, Dissenting Op. at 51–52. Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 14 3. Credible Threat of Enforcement The final piece of the pre-enforcement injury inquiry requires a credible threat that the Recruitment Provision will be enforced against Welty and Behn. See Susan B. Anthony List, 573 U.S. at 159. A showing of “subjective chill” alone is insufficient to establish a credible threat of enforcement. See Berry v. Schmitt, 688 F.3d 290, 296–97 (6th Cir. 2012); Laird v. Tatum, 408 U.S. 1, 13–14 (1972). In McKay v. Federspiel, we identified four factors, unrelated to subjective chill, on which the Supreme Court and this court have relied when considering whether a threat of enforcement is credible: (1) “a history of past enforcement against the plaintiffs or others”; (2) “enforcement warning letters sent to the plaintiffs regarding their specific conduct”; (3) “an attribute of the challenged statute that makes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action”; and (4) the “defendant’s refusal to disavow enforcement of the challenged statute against a particular plaintiff.” 823 F.3d at 869 (collecting cases). “These McKay factors are not exhaustive, nor must each be established,” but there should typically be “some combination” of relevant factors to demonstrate a credible threat. Online Merchs. Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021) (citing McKay, 823 F.3d at 869), abrogated on other grounds as recognized by Tenn. Conf. of NAACP v. Lee, 139 F.4th 557, 563 (6th Cir. 2025). We have applied the McKay factors to pre-enforcement suits challenging civil and criminal laws alike. See, e.g., id.; Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1034–36 (6th Cir. 2022) [hereinafter ULCM]. We pause before proceeding to address a few points regarding the credible threat of enforcement element and the McKay test. First, Tennessee contends that binding precedent requires a certain threat of prosecution, citing language from Crawford v. U.S. Department of Treasury stating that “the threat of prosecution ‘must be certainly impending to constitute injury in fact.’” 868 F.3d 438, 454–55 (6th Cir. 2017) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)). But more recent governing precedents have clarified that the correct standard is credibility, not certainty. As the Supreme Court explained one year after Clapper in Susan B. Anthony List, a showing that impending prosecution is certain is but one way to demonstrate that the threat is credible: “An allegation of future injury may suffice if the threatened injury is Nos. 25-5738/5739 Welty et al. v. Dunaway et al. Page 15 ‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’” 573 U.S. at 158 (quoting Clapper, 398 U.S. at 409, 414 n.5) (citation modified). Several of our recent decisions have confirmed, often while citing Susan B. Anthony List, that credibility is the correct measure. See Fischer v. Thomas, 52 F.4th 303, 307 (6th Cir. 2022) (order) (per curiam) (citing Susan B. Anthony List, 573 U.S. at 159); Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., 158 F.4th 732, 742 (6th Cir. 2025) (en banc) (same); Cath. Charities of Jackson, Lenawee, & Hillsdale Cntys. v. Whitmer, 162 F.4th 686, 691 (6th Cir. 2025) (citing Susan B. Anthony List, 573 U.S. at 158). “In a First Amendment pre-enforcement case,” as we explained in Catholic Charities, “this test is met when ‘the threat of future enforcement’ under the statute ‘is substantial.’” 162 F.4th at 691 (quoting Susan B. Anthony List, 573 U.S. at 164). Welty and Behn suggest that we need not apply the McKay factors because they have shown their speech is objectively chilled by the Recruitment Provision (though they also contend that they satisfy the McKay approach). Our decision in McKay did not address the concept of objective chill—it merely acknowledged the long-standing rule that subjective chill alone is insufficient. See 823 F.3d at 868–69. Welty and Behn’s argument regarding objective chill relies principally on our decision in Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019). Speech First concerned First Amendment challenges to two related policies at the University of Michigan: (1) a “policy prohibiting harassing and bullying behavior,” and (2) an initiative that established a “Bias Response Team” to respond to student-reported “bias incidents,” where “bias incident” was defined as “conduct that discriminates, stereotypes, excludes, harasses or harms anyone in our community based on their identity.” Id. at 761–62 (citation modified). When a bias incident was reported, the Bias Response Team contacted the reporting student fo