The Supreme Court stated clearly last week that there is no federal right to abortion. But how the decision in Dobbs v. Jackson Women’s Health Organization will affect the right to talk about abortion is far from settled, which legal experts say has loomed over whether the First Amendment will allow censorship of a medical procedure that will become illegal in much of the country.
How can women in states where abortion is banned, for example, be informed about their options elsewhere? Will media outlets be free to run ads across state lines from providers operating in states where abortion is not banned — as the Supreme Court long ago ruled they could? Can women accept information about abortion if they subsequently decide to terminate a pregnancy but do not live in a state that allows it? What if states take steps to make this kind of information exchange illegal?
“You supposedly have a right to talk about abortion,” said Will Creeley, the legal director of the Foundation for Individual Rights in Education. “The question then becomes whether that talk can be regulated if it helps and encourages or encourages others to have an abortion.
“That poses a problem with the First Amendment,” he added. “Do you still have the First Amendment right to speak if you no longer have the constitutional right to abortion? And that is going to be a mess.”
A leading anti-abortion lobby group, the National Right to Life Committee, recently proposed model legislation for states that would make it a crime to transmit information “by telephone, the Internet, or any other means of communication” used to promote a pregnancy.
Many states did just that before Roe v. Wade was decided in 1973. And it’s not clear whether courts will determine that the protections afforded to speech in the Constitution still apply to abortion rights advocates as they attempt to circumvent the set of new restrictions.
Many legal scholars say that such protections should still apply. It is generally not illegal to promote an activity that is not a crime. And since abortion will remain legal in many places, offering information about how women can get it legally shouldn’t become a crime, scientists said.
“There will be some more difficult questions,” said Eugene Volokh, a law professor at the University of California, Los Angeles. “Suppose you purposely advertise in a Texas newspaper and say, ‘Do you want an abortion? Go to this abortion clinic in New Mexico.” Can Texas ban that?”
A parallel is gambling. Casino operators in Las Vegas advertise in places where the activity is not allowed all the time. But the Supreme Court has allowed restrictions on the practice. Mr. Volokh pointed to a 1993 decision, United States v. Edge Broadcasting Co., that enforced a federal law banning lotteries advertising in states that don’t allow them.
The last time the Supreme Court ruled directly on whether this kind of abortion ban could apply was nearly 50 years ago, in Bigelow v. Virginia, when it invalidated a law that made it a felony to publish information. who encouraged a woman to have an abortion. or helped her get one.
The case involved a newspaper called The Virginia Weekly, which had placed an ad for a New York City abortion rights group that helped women, many from out of state, find doctors who could legally perform the procedure. “Abortions are now legal in New York. There are no residency requirements,” the ad said, promising “STRICTLY CONFIDENTIAL” services seven days a week.
The newspaper’s editor-in-chief was tried and convicted. A lower court upheld the conviction, ruling that the First Amendment did not protect advertising for commercial purposes.
But the Supreme Court said speech is not stripped of First Amendment protections if it has a commercial aspect, and stated that one state like Virginia cannot prohibit citizens of another, such as New York, from “disseminating information about an activity.” which is legal in that state.”
Some First Amendment experts who support abortion rights said they wouldn’t be surprised if states tried again to criminalize such statements.
“Give it three weeks,” said Lynn Greenky, a professor at Syracuse University who teaches First Amendment issues.
Major Supreme Court First Amendment decisions in the past have started with abortion cases. In those rulings, such as McCullen v. Coakley in 2014, the court acknowledged that states can place limits on expression outside abortion clinics, but also ruled that those restrictions should not be so restrictive as to burden First Amendment rights.
Ms Greenky said the protections of the First Amendment should apply not only to those who counsel women outside of clinics, but also to those who offer to help women have an abortion where it is legal to do so.
“If the anti-abortion people can talk to patients, can’t pro-choice people advise women who want an abortion?” she said.
With so many issues now ripe for legislative action by states, it’s unclear where abortion opponents will focus their resources and whether limiting how information can be shared will be a priority.
Mark L. Rienzi, a law professor at the Catholic University of America, proposed a hypothesis that he believes could test how courts might apply the First Amendment in a post-Roe world: what if New York state billboards would buy in Texas that offer to help women there make the trip north for a legal abortion?
Mr. Rienzi, who argued in the Supreme Court on behalf of Eleanor McCullen, who provided counseling and support to women outside of clinics in hopes of convincing them not to have an abortion, said he thought Texas would be on shaky legal ground if it did. try to sue everyone in New York for the billboard.
“The underlying thing is that it’s not a crime where it happens,” he said.
But Mr Rienzi added that the new legal landscape had not yet been mapped out, leaving very little certainty about what laws states are now allowed to pass freely. “I think in some ways we don’t really know because the political process has essentially been bogged down for 50 years,” he added.
