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Tough New Abortion Laws Raise Free Speech Questions

By Richard Dahl on July 12, 2022 1:51 PM

In large chunks of the U.S., the post-Roe landscape is sizing up as a very dangerous place — and not just for women who seek an illegal abortion or anyone who performs them.

Now that they've received the green light by the U.S. Supreme Court, many states are banning abortion. But some are going further by incentivizing "citizen enforcers" to bring lawsuits against anyone who "aids and abets" an illegal abortion.

So, the questions arise: At what point does the act of providing information about abortion cross the line into aiding and abetting? How far do First Amendment free speech protections extend before they run afoul of these tough new laws?

Broad Speech Prohibitions Are Emerging

Some states, like South Carolina, are considering measures to expand the "aiding and abetting" prohibitions to include all forms of written and spoken information that might be considered useful to women seeking abortions

South Carolina has already passed a "heartbeat bill," making it illegal for anyone to have an abortion after the detection of a fetal heartbeat, typically at about six weeks into a pregnancy. A new bill introduced by three Republicans in the state's general assembly, however, calls for a complete ban on all abortions and on all information that could be interpreted as aiding a woman seeking an illegal abortion.

What does that include? The bill says it includes the following:

"Providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion."

The proposed law would also forbid anyone from:

"Hosting or maintaining an internet website, providing access to an internet website, or providing an internet service purposefully directed to a pregnant woman who is a resident of South Carolina that provides information on how to obtain an abortion, knowing the information will be used, or is reasonably likely to be used, for an abortion."

The bill's backers say they are not intending to restrict all free speech about abortion; their only goal is to halt communication that has illegal abortion as its intent.

But that line could be a thin line.

South Carolina residents would have to be careful about mentioning the availability of legal abortions in other states. Any South Carolina media outlet would need to step carefully if they discuss abortion in any fashion.

Messages Crossing State Lines

But what about abortion providers or media outlets in other states? Will they have the right to post ads in South Carolina?

In 1975, the U.S. Supreme Court ruled in Bigelow v. Virginia that one state can't bar citizens in another state "from disseminating information about an activity that is legal in that state." But now that Roe has been overturned, some legal experts point out that pre-Roe abortion advertising bans are still on the books in a dozen states.

In addition, the Supreme Court's 1993 ruling in United States v. Edge Broadcasting could provide a precedent for those favoring limiting out-of-state ads. In that case, justices upheld a federal law banning the advertising of out-of-state lotteries in states that don't allow them.

Challenges Ahead

The post-Roe legal terrain will remain unsettled as challenges inevitably mount. Those challenges will include issues involving free speech.

A word to the wise: If you wish to avoid criminal or civil penalties these days, be careful if you are talking about abortion. You do have a free speech right to do so, but be aware that a very thin line might separate free speech from a perception that you are engaging in illegal activity and potentially costly litigation.

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Could you be in legal trouble just by mentioning the availability of legal abortions in other states? In some states the answer might be yes.

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