Abortion Speech Suppression

Does the First Amendment permit the government to ban speech that enables abortion? In the wake of the Supreme Court’s monumental decision in Dobbs v. Jackson Women’s Health Organization, conflicts over abortion speech restrictions loom. State legislators and forced-abortion advocacy groups have proposed legislation that would criminalize information that helps women end pregnancies. These restrictions implicate open doctrinal questions across First Amendment jurisprudence. Their constitutional status is seemingly clear in many applications but surprisingly murky in others.This Article is the first to comprehensively evaluate bans of abortion-facilitating speech. Part I traces the history of abortion information suppression. Abortion instructional manuals and advertisements proliferated in the 1830s but withered under censorious laws in the mid-nineteenth century. Federal appellate decisions in the early part of the twentieth century limited those laws’ scope in important ways. But censorship lingered until the Roe era, offering a stark warning of suppressive threats to come. Part II surveys the modern abortion landscape and the current and proposed restrictions. Medication abortion has made abortions much simpler and more private for many women. And the internet has made it much easier to access information about abortion. These developments have profound implications for the scope and methods of attempted suppression. Current proposals ban aiding-and-abetting abortions, defined to include information such as how to obtain and use medication abortion pills or where out-of-state abortion clinics operating legally can be found. Similar laws have been on the books for nearly two centuries. The notorious, long-dormant “Comstock Law” that completely outlaws abortion advertising remains part of the United States Code, as does the amendment to the Communications Decency Act extending its provisions to online speech. And some state codes still contain “Little Comstock Laws” that essentially mirror the federal version.Part III offers a novel doctrinal contribution, a descriptive methodological claim. It argues that the Court has used the threat of information disruption as a device for making doctrinal determinations in borderline cases, a tendency I describe as the “informational heuristic.” The Court’s free speech jurisprudence articulates a deep commitment to the free flow of information, particularly between willing speakers and listeners. That commitment has frequently manifested as a mechanism for deciding whether heightened scrutiny should apply and, if so, to what extent. The Court has consistently applied strict scrutiny to categories of regulation that pose severe risks to the flow of information. Part IV applies the informational heuristic in analyzing abortion-facilitating speech restrictions under First Amendment doctrine. It focuses on three types of restrictions: bans on advertising for legal abortions, information that facilitates illegal abortions, and medical referrals for legal abortions. These restrictions fall at the respective edges of three sub-doctrines: commercial speech, crime-facilitating speech, and professional speech. Each imposes a drastic limitation on the flow of accurate information between willing speakers and listeners. The informational heuristic thus suggests that challenges to the considered restrictions should all result in the same doctrinal outcome: application of strict scrutiny. Gravitational trends in favor of strong speech protections across these sub-doctrines offer additional support for the application of strict scrutiny.This assumes, of course, that abortion will not be treated differently, historically a fraught assumption in free speech cases. Part V examines how the Court has repeatedly disregarded the informational heuristic in cases dealing with abortion-related speech, warping multiple First Amendment sub-doctrines in the process. It contends that the Court has gone astray by excepting abortion-related speech from its normal methodological approach. The Article concludes with a brief look at how similar restrictions have fared in Europe. Experience abroad demonstrates that abortion speech suppression is not sustainable.