Free Speech

Abortion Bans Bring First Amendment Battles, Too 

Looking back at how abortion advertising bans played out last century may give us some idea what the future holds for free speech about abortion.

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It was 1971, and abortion was largely illegal in Florida. A young woman came to a Florida State University chaplain seeking advice about an unwanted pregnancy. So, Rev. Leo Sandon informed her of a clergy-backed abortion clinic in New York that would perform the procedure for $150.

Sandon soon found himself under investigation by State Attorney William Hopkins, who sought indictments against Sandon and Rev. Charles N. Landreth, an assistant minister at a Tallahassee Presbyterian church. Sandon and Landreth were part of a group called the National Clergy Consultation Service, whose members counseled women in states with abortion bans on how to get legal abortions out of state. Hopkins said their activities violated Florida's prohibition on abortion advertising.

A Florida circuit judge ultimately ruled that Revs. Sandon and Landreth should not be prosecuted, as the state's anti-abortion law did not prohibit oral advice about obtaining an abortion. But their case was not unique.

By the early 1970s, nearly 20 states prohibited publishing or advertising information about abortion, prompting all sorts of legal battles over the parameters of these laws. Even after Roe v. Wade held, in 1973, that abortion must be at least partially permitted nationwide, battles over the advertising of abortion services persisted.

The U.S. Supreme Court would go on to declare such bans unconstitutional, in the 1975 case Virginia vs. Bigelow. But laws like these still exist on the books in a dozen states today, according to the Policy Surveillance Program. And if Roe v. Wade is overturned, it's all but assured that battles over disseminating abortion information will begin again, with some digital twists.

Looking back at how abortion advertising bans played out last century may, paradoxically, give us some idea what the future holds for free speech about abortion.

Some cases involved relatively straightforward advertising. For instance, in 1970, the London Agency advertised in Massachusetts a package that included passport procurement, airfare, lodging, and an abortion at a London clinic for $1,250. Providing travel arrangements to London—for whatever reason—was not itself illegal, but advertising this service as specifically for abortion purposes was. The company and its president were charged with violating Massachusetts law against abortion advertising, and a state judge issued a restraining order against the London Agency continuing to advertise.

In Tempe, Arizona, New Times—an alt-paper founded by Michael Lacey and James Larkin (the pair that would go on to launch online classifieds site Backpage)—ran into trouble after running an ad for Problem Pregnancy Information Service, a group offering "to explain legal alternatives to unwanted pregnancies." In 1971, Tempe convicted New Times of violating Arizona's law against publishing "a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception." The conviction was upheld by Maricopa County's Superior Court but overturned in 1973, after the State Court of Appeals found it inconsistent with Supreme Court precedent and ruled Arizona's anti-abortion statutes unconstitutional.

In South Florida, in 1971, Wynn's Aerial Service stopped taking ads listing the number of  a New York abortion referral service after the Broward County Sheriff's office told the owners the ads were illegal. (Meanwhile, a local Catholic church commissioned a rival company to fly a banner that said "Abortion is Murder," and that was fine.)

In other cases, educational and informational materials were targeted.

Two California activists, Patricia McGinnis and Rowena Gurner, were arrested in 1966 after giving a lecture on abortion at a private home and distributing to attendees literature on obtaining an abortion. McGinnis' self-made pamphlets included information on doctors who would perform abortions in Mexico and Japan; how to get a doctor to prescribe an abortion in California (make suicide attempts to two psychiatrists); and what to do if cops question you about an abortion ("Say absolutely nothing other than your name.") They also provided information on self-induced abortion, though cautioned against going this route. The case found its way to the state Court of Appeals, which in 1973 cleared McGinnis and Gurner of the charges.

In 1970—the year New York legalized abortion—Manhattan's Park East Hospital sent out "Dear Doctor" letters to 40,000 doctors around the country, announcing that the hospital performed abortions on women up to 12-weeks pregnant. While the letters were legal, they were denounced by a panel of the American Medical Association as violating policies against solicitation and the New York County Medical Society's Board of Censors admonished Park East. Executive Director Ronald V. Shaw told the Associated Press at the time that he was "absolutely dumbfounded" by the response, as the letters were meant to be informational, not advertisements.

Abortion advertising battles touched more than just advertising, too. In 1971, Michigan state Rep. Dominic J. Jacobetti (D–Negaunee), vice chair of the Michigan House Appropriations Committee, threatened to withhold funds from colleges and universities that let their student papers run abortion advertising.

In 1972, the U.S. Postal Service (USPS) temporarily refused to deliver an Atlanta alt-paper, the Great Speckled Bird, because of abortion referral ads in the paper.

USPS lawyer Jerry McKinnon told The Atlanta Constitution at the time "that postmasters across the country have 'advised' a number of publications of the law in recent years," the paper reported. "He said he doesn't know how many or if the postmasters then banned the publications from the mails."

The law McKinnon seems to be referencing is a federal obscenity statute from 1873, spearheaded by famed censor Anthony Comstock. In addition to prohibiting the mailing of "obscene" materials and anything "designed, adapted, or intended for producing abortion," the Comstock Act also bans mailing anything "advertised or described in a manner calculated to lead another to use or apply it for producing abortion," any printed material "giving information, directly or indirectly," on "how or by what means abortion may be produced," and "every description calculated to induce or incite a person" to obtain an abortion.

Battles over abortion advertising came to a head in the mid-'70s, when the U.S. Supreme Court heard a case on abortion advertising out of Virginia.

The case stemmed from the arrest of University of Virginia (UVA) student Jeff Bigelow, a staffer at the local underground paper, Virginia Weekly. In 1971, Bigelow was found guilty in Albermarle County Circuit Court of encouraging abortion via advertising, after the paper ran an ad for New York City abortion referral service called Women's Pavilion. As punishment, Bigelow was fined $500, "with $300 suspended on condition that the newspaper, which is distributed from the UVA campus, refrain from running abortion referral ads," the A.P. reported in July 1971.

Bigelow appealed, alleging that the law was an unconstitutional violation of free speech and freedom of the press. But the Virginia Supreme Court denied that this was a First Amendment issue, since advertising is commercial speech.

Eventually, the case made it to the U.S. Supreme Court and, in 1975, SCOTUS overturned Bigelow's conviction in a 7-2 ruling, saying the Virginia ban on abortion advertising violated the First Amendment.

Commercial advertising is not "stripped of all First Amendment protection," wrote Justice Harry A. Blackmun in the majority's opinion. "The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas." Blackmun said Virginia could not regulate "what Virginians may hear or read about the New York services."

The Supreme Court's ruling that advertising for out-of-state abortion services are protected by the First Amendment has important implications for the post-Roe world we will soon be living in.

As some states start passing new abortion bans or implementing bans already on the books, there will inevitably be concern that people can still get abortions by traveling to other states or by obtaining abortion pill prescriptions from a state where abortion is legal. Research has shown that this has already occured in Texas, which in 2021 passed a ban on abortion after six weeks pregnancy.

The Texas measure also prohibits aiding and abetting an illegal abortion, and similar measures have since gained traction in other states. Provisions like these could perhaps provide backdoor ways to prohibit providing information about obtaining abortions.

The precedent set in Bigelow should preclude states from trying to enforce outright bans on abortion advertising. But this doesn't mean that some states won't try, as they have done for years with abortion restrictions that were prohibited under Roe and Planned Parenthood vs. Casey. In fact, some may welcome an opportunity to get the court to revisit the issue of abortion advertising.

Even if straightforward advertising for out-of-state abortion services is permitted, this still leaves a lot of room for crackdowns on free speech about abortion. States could argue that the Bigelow decision doesn't apply to cases involving in-state services that transpire prior to an abortion, like helping arrange out-of-state travel for low-income women, referring women to out-of-state doctors who will prescribe abortion pills, or counseling of the sort done by the Tallahassee ministers.

And, of course, today's battles will be complicated by the presence of the internet. We're likely to see new battlegrounds, like how to handle search results about abortion. Already, senators have exerted pressure on Google to limit certain sorts of results (including, recently, ads for anti-abortion crisis pregnancy centers). How long until we see Google and Bing pressured to block ads for abortion pills or information on methods to self-induce abortions?

We're also likely to see abortion added to the list of things used to justify broader crackdowns on free speech, in the way that things like sex work, disinformation, and domestic extremism is used today.

The ability to communicate privately about illegal abortions could be used as another argument against encrypted communication. And it shouldn't be long until we hear about how Section 230 of federal communications law should be reformed since it protects Big Tech from being held liable for user posts about how to obtain an abortion.

Abortion also presents a thorny question for social media laws like one passed in Texas, which insists that social media companies cannot moderate content based on viewpoint. Providing pro-choice information would seem to be a protected viewpoint. But in protecting it, will these platforms be accused of  "aiding and abetting" illegal abortion?

"The services must make laser-precise determinations of whether content is legal or illegal, with potential liability for making mistakes in either direction, even if in good faith," first amendment lawyer and Santa Clara University professor Eric Goldman told Protocol recently.

That means risk-averse companies may be quick to censor a wide range of content related to abortion, even if that content would ultimately prove protected by Section 230 and the First Amendment.

Tech companies may also balk at dealing with digital ads for abortion services, for fear that these would also count as aiding and abetting (especially if algorithms target these ads to people in states where abortion is limited). State lawyers could argue that these are not bans on advertising, a form of free speech, but on solicitations toward criminal conduct, as officials have often argued in regard to online classified ads related to sex. Even if ultimately unsuccessful, lawsuits like this would create even more of a chilling effect on free speech about abortion.

We may also see activists pressure web-hosting platforms and other back-end providers of internet infrastructure that make abortion ads or information available, as we've seen in cases involving things like sex trafficking or the January 6 riot. This could make it harder for providers of abortion services or information to send newsletters, host websites, and otherwise have a digital presence.

There are more lo-fi avenues this could take, as well. Remember, for instance, that the federal law against mailing abortion information is still on the books.

First Amendment case law as developed over the past half century suggests enforcement of it may not stand up to a legal challenge. But that doesn't mean that no one will try, or that some speech couldn't still get quietly chilled in its name, as happened with the untold number of publications postmasters rejected in the 1970s.

First Amendment lawyer Lawrence Walters says he believes "the Post Office could not prohibit use of a government service based on the content of the mailed materials, unless the materials were themselves illegal (obscenity) or if they promoted or incited illegal activity." Doing so would be a content-based restriction on speech, which doesn't fly.

But "the government could then argue, if Roe is overturned, that materials relating to abortion incite illegal activity in some states (which passed abortion bans) and therefore there is a compelling interest supporting the ban," Walters tells Reason. "Then it would come down to whether a flat-out prohibition on mailing materials involving abortion is the least restrictive means of promoting the compelling interest."

Walters says the statute might fail on those grounds, "since there are other less restrictive means of addressing the interest than an all-out ban on speech," and that "separately, the statute could be challenged facially as overbroad, since it prohibits a substantial amount of protected speech (where abortion remains legal)."

"I've not seen any recent cases interpreting this old statute," he adds, "but … the issue could arise again."

We could also see something like what Michigan state Rep. Jacobetti tried in the '70s, with threats to limit funding for schools that permit campus papers to publish abortion ads.

Ultimately, the possibilities for censorship of abortion are myriad. Whatever happens, it seems likely that speech about abortion will become a major issue in a post-Roe world, and one more thing used to justify cracking down on digital platforms and those who use them.