The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The South Carolina state Senate is considering a bill that would basically ban abortions, with no exception other than for abortions "designed or intended to prevent the death of a pregnant woman" (though even that's uncertain, given the sentence that "The provisions of this section must not be construed to authorize the intentional killing of an unborn child"). The bill wouldn't prohibit adult women from traveling to another state to get an abortion, though it would prohibit "transport[ing] a pregnant minor who resides in this State to another state to procure an abortion.".
The arguments for and against the prohibition on abortion are obvious, so I won't focus on them. (I oppose such prohibitions, but I have little useful to add about them.) Instead, I thought I'd flag something that's more within my area of expertise, and that others might miss: The law's ban on "knowingly or intentionally aid[ing or] abet[ting]" an abortion "includes, but is not limited to knowingly and intentionally,"
(1) providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion; [or]
(2) 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 abortion, knowing that the information will be used, or is reasonably likely to be used for an abortion.
Say a news site writes a story, "North Carolina Abortion Clinic Near S.C. Border Targeted for Protests," and identifies the clinic. (Assume the clinic is legal in North Carolina.) It seems to me the elements of the crime would be met:
- The story provides "information … regarding … the means to obtain an abortion," or "information on how to obtain an abortion," because it provides information about a clinic that could conveniently perform abortions for South Carolina women.
- The author surely must know that some readers will use that information to figure out where to get an abortion, or at least are reasonably likely to so use it: It might be only one in a thousand readers, with the remaining readers reading the story simply for the information it provides against the protest, but that could still be tens or hundreds of women. And indeed the story might, in the normal course of things, mention things about the abortion providers that paints them in an especially good light ("Harvard Medical School-trained Dr. Jane Schmane, who practices at the clinic, said …."), which would end up drawing patients to that particular clinic.
- The author's employer is hosting or maintaining an internet website containing the story.
- The story may well be seen as being provided "to a pregnant woman" or "purposefully directed to a pregnant woman," because pregnant women will surely read it, and of course the author wants pregnant women (alongside other women) to read it. To be sure, it doesn't seem to be directed to an identified pregnant woman, the way an e-mail to a particular person might be—but subsection (2) obviously contemplates sites published to the world at large, since an "internet website" would basically never be purposefully directed to a particular identified reader.
- The news site may well be headquartered in South Carolina, or have a branch or office in South Carolina, and would thus be subject to the jurisdiction of South Carolina.
- The law appears not to be limited to information about abortions that would be (illegally) performed in South Carolina. Perhaps one could argue that the law as a whole doesn't ban abortions performed out of state, and thus the aiding-and-abetting provision applies only to aiding and abetting in-state abortions. But the text of this section seems to cover in-state communication of information about abortions generally, and not just about in-state abortions. (Moreover, the law would clearly cover stories written about companies that are mailing abortion pills into South Carolina, if the law mentions the company's name or gives enough information based on which a quick Google search can identify the company.)
That seems pretty clearly unconstitutional to me, since it doesn't fit within the narrow Brandenburg v. Ohio First Amendment exception for purposeful incitement of imminent, likely unlawful conduct, both because (1) the conduct that the speech might facilitate would be lawful, since it would be an abortion lawfully performed in North Carolina, and because (2) the bill isn't limited to publications written with the specific purpose of promoting abortions. But such speech seems like it would be covered by the bill.
I should note that a law likely could ban providing specific information to a particular woman about where she could get an illegal in-state abortion, with the intent that she use the information to get an abortion [UPDATE: I originally inadvertently omitted the "with the intent" clause]. That would likely fit within the "speech integral to criminal conduct" exception, by analogy to solicitation of a specific crime (see U.S. v. Williams). Just as telling a friend where she can illegally buy drugs is aiding and abetting illegal drug sales, so telling a friend where she can illegally get an abortion would be punishable aiding and abetting. But this bill appears to me to go considerably beyond that.