Criminalizing Abortion Info Online Parallels Attempts to Ban Porn

The high court ruled most recently in Dobbs v. Jackson that the legality of abortion shall be left to the states, ending five decades of legal precedent and setting back women’s reproductive rights and general rights to privacy regarding health autonomy by decades.

The state adopted legislation that restricts abortions starting around six weeks of pregnancy. That law took immediate effect after a lower federal court deferred to the high court when the decision in Dobbs was officially handed down during the high court’s summer term.

The American Bar Association’s news publication, ABA Journal, reports that the National Right to Life Committee (NRLC), a well-funded right-wing religious anti-abortion group, is responsible for advocating for the limitation of abortion information online. NRLC is also affiliated or on the same ideological plane with other social conservative and right-wing groups that wish to see legal and consensual pornography content banned in the United States, despite its protected status under the First Amendment.

The safe harbor provision of Section 230 encourage self-regulation by web platforms, leaving it to the platforms to determine what constitutes harmful usage and publication of harmful content by platforms’ third-party users, and leaves it up to the platforms to monitor and moderate. The current form of the internet we all enjoy wouldn’t exist without Section 230. Adult entertainment platforms, especially, rely on Section 230 to curtail abuse of such platforms by monitoring and policing users who publish non-consensual and CSAM content online.

John Villasenor, a nonresident senior fellow for the Brookings Institution’s Center for Technology Innovation governance studies program, wrote that while it’s a more complex legal question than it might seem on its face, restricting abortion information online shouldn’t be allowed under the First Amendment. He references the case of Bigelow v. Virginia. In 1975, the Supreme Court ruled that the state of Virginia was in the wrong for convicting Jeffrey Cole Bigelow, then the managing editor of the Virginia Weekly, for printing an advertisement from a clinic in New York.  The reason he was convicted is, at the time, for advertising a procedure that was illegal in Virginia and was legal in New York.

Writing for the 7-2 majority, Justice Harry A, Blackmun, a Richard Nixon-appointed Republican jurist, found that the advertisement wasn’t illegal or unconstitutional.

“The advertisement in appellant’s newspaper did more than simply propose a commercial transaction,” Justice Blackmun wrote, citing case law for the era, including Roe v. Wade in January of 1973. “It contained factual material of clear public import.”

Bigelow was the first initial ruling that justified protected commercial speech. The high court ruled that purely commercial speech deserves First Amendment protection when it ruled, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., in 1976.

Villasenor notes that the National Right to Life Committee model legislation that South Carolina is pushing criminalizes the spread of abortion information online. Or, for “knowingly or intentionally 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 this state, that provides information on how to obtain an illegal abortion, knowing that the information will be used, or is reasonably likely to be used, for an illegal abortions.”

He notes that such a proposal, if it were to become law in any jurisdiction, would be at odds with other existing jurisprudence that protects the First Amendment within the contexts of not only in-person protest and speech but also the dissemination of information on the web.

“On balance, Supreme Court precedents regarding freedom of expression indicate that the provision of information (and advertising accompanied by information) about abortion should be protected under the First Amendment,” Villasenor wrote. “But given that Dobbs itself upended precedent, it is difficult to predict how the Supreme Court might rule on future cases involving state attempts to limit speech about abortion,” he said, adding that the internet in the post-Dobbs legal environment is shrouded with uncertainty.

Section 230, notably, survived the almost total strike down of the Communications Decency Act (CDA) of 1996. In Reno v. American Civil Liberties Union, the Supreme Court unanimously ruled that all of the anti-indecency provisions outlined by the CDA violated the First Amendment and its right to guarantee the freedom of speech on the internet.

CDA 1996 was introduced in an attempt to regulate “obscene” content and keep it away from where minors can access such content. Had it not been struck down, the CDA would have levied criminal sanctions on violators of the law, much like the proposal to criminalize abortion information.

Former Justices Ginsberg, Scalia, Stevens, Souter, O’Connor, Breyer, Rehnquist, and Kennedy, with current and aging Associate Justice Clarence Thomas, all ruled in favor of turning down the CDA due to its broadness and its encroachment on free speech online.

Section 230 was upheld by the high court at the time, thanks to the work of civil libertarian groups like the American Civil Liberties Union and the Electronic Frontier Foundation. Now, the law remains in place and would likely protect platforms and their owners from any penalty levied by a state government if a law restricts the dissemination of abortion information and the protection of private health data.

Abortion protest sign image by Karolina Grabowska from Pexels