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Second Circuit Upholds Injunction Protecting Speech About "Abortion Pill Reversal"
Such speech by the National Institute of Family & Life Advocates in this case, the court concluded, was noncommercial speech that was subject to broad First Amendment protection, rather than less protected "commercial speech."
From Nat'l Inst. of Family & Life Advocates v. James, decided today by Judge Joseph Bianco, joined by Judges Eunice Lee and Alison Nathan:
This case concerns statements that certain non-profit organizations that provide services and resources related to pregnancy and parenthood have made, or wish to make, about a protocol intended to counteract the effects of an abortion induced by oral medication.
A woman may seek to have a medication-induced abortion by first taking a dose of mifepristone followed by a dose of misoprostol 24 to 48 hours later. The dose of mifepristone is designed to block the body's progesterone receptors. Progesterone is a hormone critical to maintaining a pregnancy, and, by blocking its receptors, mifepristone can prevent the pregnancy from continuing. Once the progesterone receptors have been blocked, effectively ending the pregnancy, the dose of misoprostol induces the uterus to expel its contents.
If a woman has begun a medication-induced abortion by taking mifepristone, but has not yet taken misoprostol and decides she would like to continue her pregnancy, she may take progesterone supplements in an attempt to counter the effects of the mifepristone. The theory is that the progesterone supplements can increase the woman's progesterone levels to such a degree that the effects of mifepristone are neutralized. This use of progesterone is called "abortion pill reversal" or "APR." …
The NIFLA plaintiffs allege they have made religiously and morally motivated statements about APR on their website, social media, and in other materials … includ[ing]: (1) "if you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs. Learn more here"; (2) "Progesterone … has been used to support pregnancies with a risk of miscarriage for decades[.] … [I]f you've taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy!"; and (3) links to abortionpillreversal.com, the APR hotline, and the APRN webpage.
NIFLA sued the New York AG's office, claiming that the AG's past enforcement actions against pro-APR speakers chilled NIFLA's speech as well. And the Second Circuit "conclude[d] that the district court did not abuse its discretion, based on the record at this stage of the litigation, in finding that the NIFLA plaintiffs were likely to succeed on their First Amendment claims because their speech at issue is noncommercial speech, and the Attorney General has not demonstrated that regulation of that speech would survive strict scrutiny":
The NIFLA plaintiffs assert that they have made, and wish to continue to make, informational statements on their websites and in other sources about APR and provide links and instructions for accessing the APRN, maintained separately and exclusively by third-party HBI, so that women can receive more information about APR, receive counseling, and, if they so choose, be matched with a third-party provider who can administer APR. It is undisputed that the NIFLA plaintiffs have made, and wish to continue to make, these statements based on their moral and religious beliefs, not based on any economic motivation.
Moreover, the uncontroverted record demonstrates that the NIFLA plaintiffs do not charge for access to this information or any of the pregnancy-related or parenting services they administer. They also assert that they do not provide APR themselves, and there is no evidence in the record to the contrary. Furthermore, although they make referrals to third-party providers, which then provide APR, it is uncontroverted that they receive no commission, fee, or other form of direct or indirect remuneration for making these referrals. Thus, any decision to proceed with that protocol is made between the individual and a separate third-party provider the individual is referred to, including through the APRN. Accordingly, "[t]aken as a whole," based on the record before the Court at the preliminary injunction stage of litigation, "the nature of [the NIFLA plaintiffs'] speech" is informational, without any economic motivation, and thus, we agree with the district court that such speech is noncommercial….
To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services. This could include, depending, of course, on the particular facts and context of each situation, a reproductive rights group in a state with abortion restrictions that provides information about out-of-state organizations that will help women obtain the procedure for free; an LGBT rights group in a state with gender-affirming care restrictions that provides free information about out-of-state organizations that will help individuals seeking hormone therapy to obtain it; or a group that matches immigrants with organizations providing access to employment, English language classes, or immigration legal services. Cf. In re Primus (1978) (concluding that a letter from a lawyer associated with the ACLU to a potential client "communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery … [,] undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain," was protected speech subject to strict scrutiny under the First Amendment). Expanding commercial speech in a way that covers public statements made by these types of organizations would push the commercial speech doctrine far beyond its "core" of regulating commercial transactions, and risks stymying a central tenant of the First Amendment….
The Attorney General first asserts that the speech should be considered commercial because "someone must bear the cost" of APR "be it insurance, the medical provider, or a charity," and that, as the complaint alleges, the NIFLA plaintiffs offer services in the "stream of commerce" that have commercial value. However, this would be true of any non-profit providing information, free services, and access to third-party providers; those services will inevitably have some commercial value and eventually someone will have to be paid for them. Thus, the fact that there will be some payment for services steps removed from the original provision of the information or service "does not suffice to transform [the NIFLA plaintiffs'] ideological and religious advocacy into commercial activity."
The Attorney General also contends that, despite the fact that the NIFLA plaintiffs do not offer APR services and receive no remuneration for APR referrals or other services they provide, the NIFLA plaintiffs' statements are nevertheless commercial speech because "consumers will likely be led to believe that the NIFLA plaintiffs will arrange for them to receive [the APR protocol] because their intended statements invite consumers to access a network of physicians who are willing and able" to provide it…. But here [unlike in past cases], the NIFLA plaintiffs allege that they receive no direct or indirect payment for the services they provide or referrals they make. Moreover, there is no evidence in the record, at this stage of litigation, to suggest that the NIFLA plaintiffs gain other types of economic benefits by engaging in this speech, such as an increased customer base or a capital increase through fundraising. In addition, to the extent the Attorney General argues that the NIFLA plaintiffs' speech is commercial because they serve as the "conduit" through which individuals can receive the APR protocol, that would, as we cautioned above, expand the commercial speech doctrine to virtually every type of non-profit entity….
{To support her position, the Attorney General relies on a recent decision in National Institute of Family & Life Advocates v. Bonta (C.D. Cal. 2025), where the district court denied NIFLA's request for a preliminary injunction on the ground, among others, that NIFLA's speech is commercial. Importantly, we note that, in Bonta, the district court found that a "powerful economic motivation" was demonstrated because the plaintiffs in that case, including NIFLA, "d[id] not dispute that they engage[d] in grant fundraising based, in part, on their APR advocacy and technical support," and that economic motivation "militate[d] strongly in favor of a finding that [the] proffered speech is commercial." Here, by contrast, there is no evidence regarding the NIFLA plaintiffs' fundraising activity. Indeed, the Attorney General has conceded for purposes of this motion that the NIFLA plaintiffs' speech is not economically motivated, and there does not appear to be any evidence in the record to suggest that the NIFLA plaintiffs receive any financial benefit for engaging in the speech.}
Because we hold that the NIFLA plaintiffs' speech is likely noncommercial, the Attorney General can regulate it only if she satisfies the requirements of strict scrutiny. The Attorney General bears the burden to show that a challenged regulation satisfies strict scrutiny by demonstrating that it is narrowly tailored to serve a compelling state interest…. Here, the Attorney General has not raised any arguments regarding strict scrutiny either before the district court or on appeal, and thus she has not satisfied her burden.
{ The Attorney General also argues that she may regulate the NIFLA plaintiffs' APR-related statements as commercial speech because those statements misrepresent the safety and efficacy of APR and are thus false and misleading. To be sure, … the State can regulate false and misleading speech if it constitutes commercial speech. However, because we conclude that the NIFLA plaintiffs' statements are, on this record and at this stage in the litigation, noncommercial speech, we need not reach this argument. Moreover, the Attorney General has not asserted that she can regulate the NIFLA plaintiffs' speech under another category of speech, such as fraudulent speech, that has traditionally not received First Amendment protection….
{We note that we are reviewing the NIFLA plaintiffs' challenge to the Attorney General's conduct at an early stage of litigation, and, as we have explained, "[a] preliminary injunction is not a full merits decision, but rather addresses only the likelihood of success on the merits."" }
Caroline C. Lindsay, John J. Bursch, Erin M. Hawley, James A. Campbell, Erik Baptist, and J. Caleb Dalton (Alliance Defending Freedom) represent plaintiffs.
