By: Dessie Otachliska
February 5, 2023
On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization,1142 S. Ct. 2228 (2022). which overturned Roe v. Wade2410 U.S. 113 (1973). and thus eliminated the constitutional right to abortion on the basis of substantive due process. While the Dobbs decision has profound implications for access to abortion and reproductive healthcare across the nation, it also raises fundamental questions about states’ ability to restrict the free flow of information on the topic within their borders.
This article addresses the constitutional protections abortion-related speech is likely to receive post Dobbs. Section I introduces existing state and federal restrictions on abortion-related speech. Section II explains the doctrinal framework governing content-based government regulations under the First Amendment. Section III outlines the constitutional protections for core First Amendment speech on the topic of abortion. Section IV discusses the categorization of non-core abortion-related speech, as well as the likely level of constitutional protection it would receive under each potential category.
1. Existing State and Federal Restrictions on Abortion-Related Speech
A. State Restrictions on Abortion-Related Speech
Since the landmark ruling in Dobbs, thirteen states have restricted the availability of abortion, with additional states expected to further limit it in the future. In addition to regulating the procedure itself, multiple states have attempted to chill abortion-related speech through legislation. For instance, a proposed South Carolina bill, introduced just four days after Dobbs, would not only prohibit abortion procedures, but also “make it unlawful to aid, abet, or conspire with someone to procure an abortion.”3S.B. 1373, 124th Gen. Assemb., Reg. Sess. (S.C. 2022). The bill criminalizes: (1) providing abortion-related information to “a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication” that is reasonably likely to be used to obtain an abortion; (2) “hosting or maintaining an internet website, providing access to an internet website, or providing an internet service purposefully directed to a pregnant woman [residing in South Carolina],” if such a website provides abortion-related information reasonably-likely to be used to obtain an abortion; and (3) providing a referral to an abortion provider when such referral is reasonably likely to result in an abortion.4Id. As such, the bill’s broad language explicitly encompasses the dissemination of abortion-related speech.
The South Carolina bill was based on a June 2022 model law promulgated by the National Right to Life Committee (“NRLC”).5The NRLC is the “oldest and largest pro-life organization” in the United States, with 50 state affiliates and over 3,000 local chapters. About NRLC, National Right to Life, https://www.nrlc.org/about/ (last visited Oct. 21, 2022). The model legislation is intended to serve as a blueprint for states to limit information about abortion options both within and outside of their borders. While South Carolina appears to be the only state to have incorporated the model law into proposed legislation as of this Article, other states have challenged abortion-related speech in different ways.
In September 2022, the University of Idaho’s General Counsel issued new guidance related to the state’s abortion ban, cautioning university employees—including employees at the university’s health center—not to promote, counsel in favor of, refer for, offer, or advertise “services for abortion or for the prevention of conception.” Under the new guidance, university employees are no longer permitted to offer either emergency contraception or birth control (and may still offer condoms, but only for the stated purpose of preventing disease transmission – an example of a speech restriction). Similarly, Oklahoma’s Metropolitan Library System instructed its employees to “avoid using the word ‘abortion’ and not to assist [patrons] in looking up information” about the procedure on either library devices or patrons’ personal devices under penalty of $10,000 in fines, jail time, and termination of employment. The library system later clarified its guidance to say librarians can provide factual information about what an abortion is and help with scientific or legal research on the topic.
B. Federal Restrictions on Abortion-Related Speech
While state-level abortion restrictions have generated significant public attention following the Supreme Court’s decision in Dobbs, an existing federal statute already theoretically restricts the dissemination of abortion-related information through the U.S. mail, the internet, and other telecommunication devices. The Comstock Act, originally passed in 1873, criminalizes the dissemination of “obscene” or “lewd” materials—including materials related to abortion and contraception—through the U.S. mail.6Comstock Act of March 3, 1873, ch 258, § 2. 17 Stat. 599 (1873) (codified at 18 U.S.C. § 1462). In 1996, Congress expanded the Act as part of Title V of the Telecommunications Act of 1996 (known as the “Communications Decency Act” or “CDA”) to also prohibit the dissemination of abortion-related communications over the internet.7See Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat. 56 (1996).
In practice, the modified Comstock Act has never been enforced, at least in part because its constitutionality is considered questionable. In his signing statement for the Telecommunications Act of 1996, President Bill Clinton expressly doubted the constitutionality of the Act’s prohibition on the transmittal of abortion related information.8Presidential Statement on Signing the Telecommunications Act of 1996, The American Presidency Project (Feb. 8, 1996). The next day, in response to the filing of two federal lawsuits challenging the constitutionality of the abortion-related language on First Amendment grounds, then-Attorney General Janet Reno informed Congress that the Justice Department would neither enforce the provision nor defend its constitutionality in court. Ultimately, the lawsuits in question did not reach the constitutional question, in part because of the Clinton Administration’s commitment not to enforce the provision.9See Sanger v. Reno, 966 F. Supp. 151 (E.D.N.Y. 1996); Am. C.L. Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). While the Justice Department has never deviated from that policy or attempted to enforce the modified Comstock Act’s restriction on abortion-related speech, there is nothing to prevent a future administration from changing course.
These examples highlight some of the ways in which state legislation governing the dissemination of abortion-related information—as well as its sometimes-forgotten federal counterpart—has not only limited access to the procedure itself, but also chilled speech concerning reproductive health. These policies have raised significant First Amendment questions about whether the government can prohibit the free flow of information on the topic of abortion.
II. First Amendment Doctrinal Framework
The First Amendment to the U.S. Constitution, incorporated against the states via the Fourteenth Amendment,10See Gitlow v. New York, 268 U.S. 652, 666 (1925); see also U.S. Const. amend XIV. enjoins the government from making any laws “abridging the freedom of speech.” As such, the government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”11Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). However, the Supreme Court has long held that this protection “does not confer an absolute right to speak or publish.”12See Gitlow, 268 U.S. at 666. Thus, government regulation restraining free expression may be “permitted for appropriate reasons.”13See Elrod v. Burns, 427 U.S. 347, 360 (1976).
When reviewing a law regulating speech, courts distinguish between content-based and content-neutral restrictions. Content-based restrictions of protected speech—those targeting speech based on its communicative message—are presumptively unconstitutional and subject to strict scrutiny.14See, e.g., Reed, 576 U.S. at 163 (2015) (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)). These laws must be narrowly tailored to serve a compelling government interest.15Id. Because they target the message of the speech, laws restricting the dissemination of abortion-related speech constitute content-based regulations and are subject to strict scrutiny.
However, that does not end the analysis. The Supreme Court has identified several categories of “low”-value expression that are either wholly unprotected or offered limited protection by the First Amendment. These categories of speech include certain types of commercial speech, incitement of illegal activity, and obscenity and child pornography.16See D. Freedom of Speech and Expression, 116 Harv. L. Rev. 262, 267 (2002); see also Russell W. Galloway, Basic Free Speech Analysis, 31 Santa Clara L. Rev. 883, 884 (1991). Content-based government regulation of speech in these “low”-value categories is not subject to strict scrutiny. As such, the constitutionality of laws restricting the dissemination of abortion-related information largely depends on the way such expression is categorized.17Galloway, supra note 16, at 884.
III. Abortion-Related Speech as Fully Protected Speech
Regardless of the scope of a particular regulation, certain abortion-related speech would almost always constitute fully protected expression and would, therefore, receive the highest form of First Amendment protection. Examples of speech in this category include truthful, factual information regarding abortion and political discourse regarding the legality of abortion.
A. Abortion-Related Truthful, Factual Information
Restrictions on truthful, factual abortion-related speech will likely be unconstitutional regardless of the specific statutory language. Truthful, factual information receives the highest degree of First Amendment protection. Regulations limiting this type of speech are presumptively unconstitutional and must survive strict scrutiny.18See supra nn. 19, 20. Truthful, factual, abortion-related information may include textbooks, academic articles, informational pamphlets, websites or podcasts posting factual information regarding abortion, scientific and academic research regarding the procedure or the impacts of limiting it, as well as medical, nursing, or other training on the topic. Information conveyed by physicians and medical staff during telehealth or in-person medical visits, as well as labels and related information about medication involved in the procedure, can also fall in this category.
Given the expansive and often untested nature of state (and federal) restrictions on abortion-related speech, it is possible to read certain regulations as hindering the free flow of truthful, factual information on abortion procedures and medication. The “aiding and abetting” provision in the proposed South Carolina bill and its NRLC model is one such example. It broadly prohibits providing abortion-related information to pregnant women or people seeking abortion information on their behalf and hosting websites doing the same. Under a broad reading, any informational material such as a textbook, research article, medical pamphlet, or educational website which can be accessed by a pregnant woman and describes the abortion procedure would be within the scope of such statutory restrictions.
Regulations like these are presumptively unconstitutional unless they survive strict scrutiny, which is unlikely. First, it is not clear the government can present a valid—let alone compelling—interest served by restricting the flow of truthful, factual information on the topic of abortion to its citizens. Even if such an interest did exist, it is very unlikely that the government can prove a broadly-worded statute like the ones discussed above is sufficiently narrowly tailored to serve this interest, given that there would almost certainly be less restrictive alternatives. For instance, instead of censoring truthful, factual speech, the government can counter its message with descriptions of the health, social, or moral risks it perceives to be associated with abortion. As a result, statutes-regulating abortion-related speech would almost always violate the First Amendment as applied to truthful, factual information.
B. Political Discourse Regarding Abortion’s Legality
Similarly, restrictions on political speech and discourse around the legality of abortion would likely run afoul of the Constitution. Political discourse—like the dissemination of truthful information—is at the core of First Amendment protections.19See, e.g.,Eu v. San Francisco Cnty. Democratic Central Comm., 489 U.S. 214, 223 (1989) (“The First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”). As such, it is also subject to strict scrutiny.20See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). Potential restrictions in this category include limitations on billboards, TV, radio, internet, or print political ads, criticizing the government for regulating abortion, advocating for a change in legislation, or supporting or opposing a particular candidate based on their stance on abortion. Similarly, podcasts, opinion editorials, and other speech expressing a political opinion would be protected. Notably, money spent in political campaigning—both expenditures and contributions—related to abortion regulation would also be protected.21See, e.g., Randall v. Sorrell, 548 U.S. 230, 241 (2006) (stating that both campaign contributions and expenditures are subject to First Amendment protections).
As with the restrictions on truthful, factual information, it is unclear that the government can articulate any kind of valid interest in restricting core political abortion-related speech. It is even more unlikely that the government can meet the significantly higher bar of articulating a compelling interest in restricting such speech. Even if a court were to accept that such an interest existed, the government could employ less restrictive alternatives, such as engaging in informational or education campaigns, or countering the speech of political opponents with campaign messages of its own. Given this, it is unlikely that a statute regulating abortion-related political speech can survive strict scrutiny.
IV. Abortion-Related Speech as “Low”-Value Speech
It is less clear whether the government can restrict speech that does not self-evidently fall within core First Amendment protections. As discussed above, the Supreme Court has identified several categories of speech that are considered of “low” First Amendment value and are therefore afforded less than full constitutional protection.22See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”). Among these categories of “low”-value speech, it is likely that abortion-related speech could be classified as either: (1) commercial speech; (2) speech likely to incite imminent illegal action; or (3) a wholly novel category of “low”-value speech.
A. Abortion-Related Commercial Speech
Commercial speech has already been targeted by regulations in the post-Dobbs framework. Commercial speech in this context can encompass a wide range of communicative content. Advertisements of the abortion procedure or medication that can abort or prevent a pregnancy, informational pamphlets sponsored by a specific provider or manufacturer, and websites advertising where to obtain an abortion or specific providers are all examples of abortion-related commercial speech. In fact, paid advertising on social media platforms (and pay-per-click advertisements more generally) have already been targeted by anti-abortion activists. Both the NRLC model law and Texas Heartbeat Act contain provisions directed at abortion-related advertising. However, there is ambiguity as to (1) what other types of speech could be categorized as commercial speech for First Amendment purposes and (2) to what extent this speech can be restricted by the government.
1. Commercial Speech Definition
The Supreme Court has never articulated a clear definition of what constitutes commercial speech for the purposes of First Amendment analysis. In Bolger v. Youngs Drug Products Corporation, the Court clarified that speech cannot be considered commercial merely because (1) it was in the context of an advertisement; (2) refers to a specific product; or (3) was motivated by an economic incentive—but could be if all three factors were present.23463 U.S. 60, 66 (1983). Based on this definition, online, TV, radio, podcast, and print advertisements for abortion services, abortifacients, or specific providers performing or referring patients for abortions would likely constitute commercial speech. Further, because of the economic motive inherent in pay-per-click advertisements, such digital documentation could also be construed as commercial speech, regardless of whether it advertises a specific provider or product or leads to a purely informational website on the topic of abortion. Mass-mailed pamphlets or email communications would likely fall into the same category.
2. Bigelow v. Virginia
While the definition of abortion-related commercial speech remains unclear, existing Supreme Court precedent unambiguously affords it First Amendment protection. In Bigelow v. Virginia,24421 U.S. 809 (1975). the Supreme Court directly addressed the question of whether the government can criminalize abortion-related advertising. The editor of a Virginia newspaper was convicted for publishing an advertisement for an organization that helped women with unwanted pregnancies obtain “immediate placement in accredited hospitals and clinics at low cost” in New York, where abortions were legal and there were no residency requirements to obtain one.25Id. at 812. His actions violated a Virginia statute criminalizing the “encourage[ment] or prompt[ing] the procuring of an abortion or miscarriage” by “the sale or circulation of any publication.”26Id. at 812–13.
The Supreme Court invalidated the statute on First Amendment grounds. The Court stressed that “commercial advertising enjoys a degree of First Amendment protection.”27Id. at 821 (citing Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973)). More importantly, the message conveyed in the advertisement in question had social value beyond the mere commercial transaction advertised:
Viewed in its entirety, the advertisement conveyed information of potential interest and value to a diverse audience—not only to readers possibly in need of the services offered, but also to those with a general curiosity about, or genuine interest in, the subject matter or the law of another State and its development, and to readers seeking reform in Virginia.28Id. at 822.
The Court held that the state had no valid interest in “shielding its citizens from information about activities outside Virginia’s borders, activities that Virginia’s police powers do not reach.”29Id. at 827–28. The Court stressed that Virginia could not prevent its residents from traveling out of state to obtain an abortion.30Id. at 824. Similarly, the state had no power to regulate abortion services provided in New York.31Id. The Court therefore found that Virginia was attempting to “bar a citizen of another State from disseminating information about an activity that is legal in that State”—an action squarely prohibited by the First Amendment.32Id.
While Bigelow did not implicate substantive due process, the decision postdates Roe v. Wade, which the Court itself noted.33Id. at 815 (“During the pendency of his appeal, Roe v. Wade . . . and Doe v. Bolton . . . were decided.”). In addition, citing to Roe, the Court stressed the fact that the “activity advertised pertained to constitutional interests,” which caused the “appellant’s First Amendment interests [to] coincide[ ] with the constitutional interests of the general public.”34Id. at 822. The Court’s apparent reliance on Roe raises obvious questions as to whether, following the Dobbs decision, the outcome would be the same in the absence of a constitutionally-protected right to abortion.35See David F. McGowan, A Critical Analysis of Commercial Speech, 78 Cal. L. Rev. 359, 365 (1990).
3. Abortion-Related Speech Under the Central Hudson Test
Bigelow can also be distinguished on the basis that it predates Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,36447 U.S. 557, 561 (1980). which articulates the modern test for when the government can regulate commercial speech. Under Central Hudson, courts can regulate commercial speech if: (1) the speech is misleading or concerns an unlawful activity; (2) the asserted government interest is substantial; and, if so (3) if the regulation directly advances the government interest; and (4) the government interest could not be served as well by a more limited restriction.37Id. at 566.
With respect to the first factor, the outcome of the analysis post-Dobbs clearly depends on the jurisdiction whose laws are considered. Bigelow itself never addressed that question since the holding postdated Roe v. Wade, which conferred the right to abortion nationwide. However, later decisions have read Bigelow as adopting a “strong position against the constitutionality of a prohibition by one locality . . . on advertising regarding activities lawful in another locality.”38Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Worcester, 851 F. Supp. 2d 311, 315 (D. Mass. 2012); see also Leslie Gielow Jacobs, Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield, 21 Lewis & Clark L. Rev. 1081, 1096 (2018). In fact, courts have “interpreted Bigelow to mean that an activity is ‘lawful’ under the Central Hudson test so long as it is lawful where it will occur.”39City of Worcester, 851 F. Supp at 315 (citing Katt v. Dykhouse, 983 F.2d 690, 696 (6th Cir. 1992); Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984); see also Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 607 (9th Cir. 2010). Thus, abortion-related commercial speech discussing the availability of abortion procedures or medication in a state where such services are legal would likely not satisfy the first prong of Central Hudson, as long as the speech is not misleading.
Although it predates Central Hudson, Bigelow nonetheless sheds light on the other three factors of the later test. First, the Bigelow Court explicitly held that attempting to prevent the flow of information regarding the availability of abortion-related services in other states is not a valid government interest.40Bigelow, 421 U.S at 827–28. Similarly, preventing a state’s residents from traveling out of state to receive abortion services41Id. at 824. and regulating the quality of services a state’s citizens receive out of state42Id. are also not valid government interests. In fact, it is difficult to imagine a proposed justification for restricting this type of abortion-related speech that does not run afoul of Supreme Court precedent.
Relatedly, in the absence of a valid government interest, the state is definitionally unable to satisfy the third Central Hudson factor—whether the regulation directly advances the government interest asserted. Even if such an interest were identified, it is very likely that less restrictive alternatives exist. As discussed above, the government can provide information about any perceived dangers of out-of-state abortion services or the ethical or moral issues it believes citizens should consider. It is therefore likely that government regulation on abortion-related commercial speech would often fail the fourth Central Hudson prong. Given that such regulations would likely fail to satisfy all four Central Hudson factors, Bigelow arguably remains good law even in the absence of a constitutional right to abortion, thereby providing a degree of constitutional protection against such regulations.
B. Abortion-Related Speech as Incitement of Illegal Activity
Some abortion-related speech is clearly neither core First Amendment speech nor commercial in nature. Conversations between friends or family members about whether to have an abortion and how are one example. The issue with this kind of speech arises when it transcends the mere exchange of factual information and involves urging someone to get an abortion or instructing them how to do so in a state where the procedure is illegal.
The Supreme Court has long recognized that the government can restrict expression likely to incite imminent illegal activity.43See, e.g., Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Gitlow, 268 U.S. at 667; Whitney v. California, 274 U.S. 357 (1927). The modern test for when the government can punish such speech was articulated in Brandenburg v. Ohio.44395 U.S. 444, 447–48 (1969). Under Brandenburg, courts looks at whether the speaker: (1) expressly advocated for a violation of the law; (2) the advocacy called for an immediate violation; and (3) an immediate violation was likely to occur.45Id.
In the context of abortion restrictions, speech that could satisfy this test includes situations where the speaker urges the listener to immediately violate the relevant abortion regulation in a way that makes it likely that the listener will do so. The key here is imminency—the speech must be such that it incites the listener to act immediately, without taking time to think about their actions. In this context, phone or video conversations, texts, or messages on social media and instant messaging platforms become important for two reasons: (1) this technology is capable of conveying speech instantaneously; and (2) it often provides a contemporaneous record of the communication that can be obtained by law enforcement.
While there are no examples of criminal or civil convictions on the basis of inciting abortion purely through speech so far, the language of many state statutes prohibiting abortion—including the proposed South Carolina bill, the NRLC model law, and the Texas Heartbeat Act discussed above—appears to be broad enough to encompass this type of speech. In addition, there are already instances of criminal prosecution on the basis of urging another person to get an abortion. For instance, a 41-year-old mother in Nebraska is facing felony charges after police obtained a warrant for the private Facebook messages in which the woman “coach[es] her daughter . . . how to take the abortion pills.” Under the “attempt to perform or induce an abortion” provision of Nebraska’s Statute 28-3,106, the mother’s actions could subject her to liability even if the daughter had not terminated the pregnancy.46Neb. Rev. Stat. § 28-3,106 (“Attempt to perform or induce an abortion means an act . . . that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion” in violation of the statute). Depending on the specific language used,47Even something as simple as saying “Take the pills right now!” could satisfy the test. it is possible the mother’s expression meets the Brandenburg test for incitement. As such, abortion-related speech (including private conversations via the phone or internet) can lose its constitutional protection if a court found that the speaker both intended to cause the listener to imminently violate the law and an imminent violation was likely to occur. In those circumstances, a government restriction on abortion-related speech is likely to be upheld.
C. Abortion-Related Speech as a Novel Category of “Low”-Value Speech
Finally, and most controversially, a court could conceivably categorize abortion-related speech as a novel category of “low”-value expression. Most recently, the Supreme Court addressed the idea of expanding “low”-value speech categories in a series of cases, involving child pornography, animal cruelty, and violent expression.
In New York v. Ferber, the Court upheld a New York statute prohibiting the distribution of materials depicting minors engaged in sexual activities, and thereby established child pornography as a wholly unprotected category of speech.48458 U.S. 747 (1982) The Court stressed that establishing a new category of unprotected speech is justified when “the evil to be restricted so overwhelmingly outweighs the expressive interest, if any,” of the speech.49Id. at 764-65. The Court further articulated five factors that favored upholding the restriction, including: the restriction is necessary to achieve the government’s compelling interest in “safeguarding the physical and psychological well-being of [ ] minors”; restricting the advertising and sale of child pornography decreases demand for the illegal activity and abuse; and recognizing child pornography as categorically excluded from First Amendment protection is not inconsistent with the Court’s precedent.50Id. at 757-65.
However, the Court has also indicated that it is not willing to further expand unprotected categories. First, in United States v. Stevens, the Court refused to apply the Ferber reasoning to videos depicting animal cruelty,51559 U.S. 460 (2010). holding that the creation of unprotected categories of expression must be grounded in historical practice.52Id. at 470-72. Similarly, in Brown v. Entertainment Merchants Association the Court refused to expand the list of unprotected categories to include violent video games that the California legislature concluded can harm children.53564 U.S. 786, 794 (2011). Brown and Stevens suggest that a legislature’s determination that certain speech is harmful to children or animals—in the absence of clear historical practice restricting such speech—is not sufficient to warrant the creation of a novel category of unprotected expression.
Given this, categorizing abortion-related speech as a novel category of “low”-value or fully unprotected expression would run contrary to established Supreme Court precedent. First, as Bigelow demonstrates, there is no historical precedent for treating abortion-related speech as categorically excluded from First Amendment protection. Thus, a legislature’s choice to prohibit such speech as harmful to children (or citizens in general) would not be sufficient to move it outside the First Amendment’s scope.
Second, and more importantly, the reasons articulated by the Supreme Court in Ferber for categorically excluding child pornography are simply not applicable to abortion-related speech. The Ferber Court stressed the fact that censoring child pornography (1) destroys the market to create it thereby protecting children from abuse, and (2) protects victims from the emotional and psychological damage caused by its continued circulation. While one can argue that restricting abortion-related speech would also restrict the market to seek out the procedure, empirical evidence that restricting the procedure’s availability has failed to reduce demand for abortion suggests speech restrictions would also fail to do so. Recent studies tracking abortion rates for 150 countries for a period of five years indicate that abortion restrictions do not have a statistically significant impact on the incidence of abortion in the jurisdiction. Moreover, even assuming, arguendo, that life begins at conception, restricting abortion-related speech in no way protects a fetus from the effects of the procedure itself. Because regulating speech about abortion is considerably different than regulating the abortion procedure, a government interest justifying one does not necessarily justify the other.
Finally, unlike child pornography, as the Bigelow Court affirmed, abortion-related expression has clear and judicially-recognized value. As such, categorizing abortion-related speech as a novel category of “low”-value or unprotected speech would run contrary to historical practice and Supreme Court precedent.
As more states contemplate statutes involving broad language restrictions on abortion-related speech, courts will need to evaluate both the nature of the government action and the type of speech in question. Given that regulations targeting abortion-related speech are, by definition, content-based, they must survive the highest level of constitutional scrutiny unless they concern a type of speech categorized as “low”-value. As such, true, factual information and political speech on the topic of abortion will likely remain protected. Speech falling outside the First Amendment’s core protections is likely to be categorized as either (1) commercial speech, (2) speech inciting imminent lawless action, or (3) a novel category of unprotected speech. In the absence of clear evidence that the speaker both intends and is likely to cause another to imminently break the law, government regulations restricting abortion-related speech would likely fail to withstand constitutional scrutiny without overturning established Supreme Court doctrine.
Dessie Otachliska, J.D. Class of 2021, Harvard Law School. Any views expressed here are entirely my own and do not reflect the views of my employer or any organization I am affiliated with.
Suggested Citation: Dessie Otachliska, Free Speech Post-Dobbs: The Constitutionality of State and Federal Restrictions on the Dissemination of Abortion-Related Information, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1142 S. Ct. 2228 (2022).
- 2410 U.S. 113 (1973).
- 3S.B. 1373, 124th Gen. Assemb., Reg. Sess. (S.C. 2022).
- 5The NRLC is the “oldest and largest pro-life organization” in the United States, with 50 state affiliates and over 3,000 local chapters. About NRLC, National Right to Life, https://www.nrlc.org/about/ (last visited Oct. 21, 2022).
- 6Comstock Act of March 3, 1873, ch 258, § 2. 17 Stat. 599 (1873) (codified at 18 U.S.C. § 1462).
- 7See Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat. 56 (1996).
- 8Presidential Statement on Signing the Telecommunications Act of 1996, The American Presidency Project (Feb. 8, 1996).
- 9See Sanger v. Reno, 966 F. Supp. 151 (E.D.N.Y. 1996); Am. C.L. Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997).
- 10See Gitlow v. New York, 268 U.S. 652, 666 (1925); see also U.S. Const. amend XIV.
- 11Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).
- 12See Gitlow, 268 U.S. at 666.
- 13See Elrod v. Burns, 427 U.S. 347, 360 (1976).
- 14See, e.g., Reed, 576 U.S. at 163 (2015) (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)).
- 16See D. Freedom of Speech and Expression, 116 Harv. L. Rev. 262, 267 (2002); see also Russell W. Galloway, Basic Free Speech Analysis, 31 Santa Clara L. Rev. 883, 884 (1991).
- 17Galloway, supra note 16, at 884.
- 18See supra nn. 19, 20.
- 19See, e.g.,Eu v. San Francisco Cnty. Democratic Central Comm., 489 U.S. 214, 223 (1989) (“The First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”).
- 20See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).
- 21See, e.g., Randall v. Sorrell, 548 U.S. 230, 241 (2006) (stating that both campaign contributions and expenditures are subject to First Amendment protections).
- 22See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”).
- 23463 U.S. 60, 66 (1983).
- 24421 U.S. 809 (1975).
- 25Id. at 812.
- 26Id. at 812–13.
- 27Id. at 821 (citing Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973)).
- 28Id. at 822.
- 29Id. at 827–28.
- 30Id. at 824.
- 33Id. at 815 (“During the pendency of his appeal, Roe v. Wade . . . and Doe v. Bolton . . . were decided.”).
- 34Id. at 822.
- 35See David F. McGowan, A Critical Analysis of Commercial Speech, 78 Cal. L. Rev. 359, 365 (1990).
- 36447 U.S. 557, 561 (1980).
- 37Id. at 566.
- 38Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Worcester, 851 F. Supp. 2d 311, 315 (D. Mass. 2012); see also Leslie Gielow Jacobs, Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield, 21 Lewis & Clark L. Rev. 1081, 1096 (2018).
- 39City of Worcester, 851 F. Supp at 315 (citing Katt v. Dykhouse, 983 F.2d 690, 696 (6th Cir. 1992); Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984); see also Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 607 (9th Cir. 2010).
- 40Bigelow, 421 U.S at 827–28.
- 41Id. at 824.
- 43See, e.g., Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Gitlow, 268 U.S. at 667; Whitney v. California, 274 U.S. 357 (1927).
- 44395 U.S. 444, 447–48 (1969).
- 46Neb. Rev. Stat. § 28-3,106 (“Attempt to perform or induce an abortion means an act . . . that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion” in violation of the statute).
- 47Even something as simple as saying “Take the pills right now!” could satisfy the test.
- 48458 U.S. 747 (1982)
- 49Id. at 764-65.
- 50Id. at 757-65.
- 51559 U.S. 460 (2010).
- 52Id. at 470-72.
- 53564 U.S. 786, 794 (2011).