Last week, the Supreme Court ruled that there is no federal right for abortion. But how the decision in Dobbs v. Jackson Women’s Health Organization affects the right to talk about abortion remains far from settled, teeing up what legal experts said was a looming confrontation over whether the First Amendment allows censoring speech about a medical procedure that will become illegal in much of the country.
How can women be informed in states where abortion is illegal? Will media outlets be free to publish advertisements across state lines from providers operating in states where abortion has not been outlawed — as the Supreme Court long ago ruled they could? Will women be allowed to accept information about abortion if they then decide to terminate a pregnancy but don’t live in a state that allows it? What if the states decide to make this type of information illegal?
“You have the right, ostensibly, to talk about abortion,” said Will Creeley, the legal director for the Foundation for Individual Rights in Education. “The question then becomes whether that talk can be regulated if it aids and abets or encourages others to have an abortion.
“That presents a First Amendment problem,” he added. “Will you still have the First Amendment right to speak when you no longer have the constitutional right to an abortion? And that is going to get messy.”
A top anti-abortion lobbying group, the National Right to Life Committee, recently proposed model legislation for states that would make it a crime to pass along information “by telephone, the internet or any other medium of communication” that is used to terminate a pregnancy.
Many states did exactly that before Roe V. Wade was decided in 1973. It is unclear if courts will rule that the Constitution’s speech protections still apply to supporters of abortion rights as they seek to avoid the raft new restrictions.
Many legal experts believe such protections should continue to apply. It is generally not illegal to promote an activity that isn’t a crime. And since abortion will remain legal in many places, offering information about how women can obtain one legally shouldn’t become a crime, scholars said.
“There will be some tougher questions,” said Eugene Volokh, a professor of law at the University of California, Los Angeles. “Let’s say you’re deliberately advertising in a Texas newspaper and say, ‘Would you like an abortion? Go to this New Mexico abortion clinic.’ Can Texas prohibit that?”
One parallel is gambling. Casino operators in Las Vegas advertise all the time in places where the activity isn’t allowed. However, the Supreme Court has allowed some limitations to this practice. Mr. Volokh pointed to a 1993 decision, United States v. Edge Broadcasting Co. that upheld a federal law banning advertising about lotteries in states that don’t allow them.
The Supreme Court didn’t address the question of whether these types of bans could apply in abortion until Bigelow, v. Virginia 50 years ago. It invalidated a law that made a publication that encouraged or assisted women to have an abortion a misdemeanor.
The Virginia Weekly was the newspaper that ran the ad. It was a newspaper. They had published an advertisement from an abortion rights group in New York City. This group helped many women from out-of-state find legal doctors to 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 paper’s managing editor was tried and convicted. A lower court upheld the conviction, ruling that the First Amendment didn’t protect advertisements for commercial purposes.
But the Supreme Court said that speech is not stripped of First Amendment protections if it happens to have a commercial aspect, and declared that one state like Virginia could not bar citizens from another like New York “from disseminating information about an activity that is legal in that state.”
Some First Amendment experts who support abortion rights stated that they wouldn’t be surprised if states tried to criminalize such speech again.
“Give it three weeks,” said Lynn Greenky, a professor at Syracuse University who teaches First Amendment issues.
The Supreme Court has made major First Amendment decisions in the past, many of them involving abortion cases. These cases, such as McCullen and Coakley (2014), have shown that the Supreme Court has recognized that states can limit speech outside abortion clinics, but that these limits cannot be so restrictive as to burden First Amendment rights.
Ms. Greenky said that First Amendment protections shouldn’t just apply to those offering counseling to women outside clinics, but also to those offering to help women get an abortion where it is legal.
“If the anti-abortion folks can speak to patients, can’t pro-choice folks counsel women who seek an abortion?” she said.
There are many issues that require legislative intervention from the states. It is unclear where the opponents of abortion will concentrate their resources. Also, it is unclear whether limiting information sharing will be a priority.
Mark L. Rienzi, a Catholic University of America law professor, proposed a hypothetical that could be used to test the First Amendment’s application in a post-Roe world. What if New York State purchased billboards in Texas, offering help for women in Texas to make the trip north for legal abortion?
Mr. Rienzi, who argued in the Supreme Court for Eleanor McCullen. He offered counseling and support to women outside of clinics in an effort to persuade them not to have an abortion.
“The underlying thing is it’s not a crime where it’s happening,” he said.
Mr. Rienzi said that the new legal landscape was still being mapped, and that it is difficult to know what laws states will be able to pass. “I think in some ways we don’t really know because the political process has essentially been jammed for 50 years,” he added.
Source: NY Times
