The South Carolina legislature is moving to enact a new law with deeply troubling free speech implications. Following the Jackson Women’s Health Organization v. Dobbs decision overturning Roe, the legislators have sought to criminalize any effort to ”aid, abet or conspire with someone” to obtain an abortion. That apparently includes sharing information over the Internet or other communication systems. In my view, the law violates the First Amendment and should be scuttled by the legislature. Otherwise, it would likely be struck down by the courts.
The language below is reminiscent of laws making it illegal to share information on committing suicide. I have long objected to prosecutions for sharing such information as inimical to free speech.
The free speech concerns are even greater with regard to the South Carolina law. Abortion is a protected right in many states. Indeed, many continue to believe that this is a protected right under the Constitution.
The law criminalizes sharing information on “the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion.” It is an unconstitutionally broad provision. Even the federal government and members of Congress would be in violation since it is actively assisting those seeking abortion services.
Of course, it is easy to introduce legislation but it is important to flag such excessive laws before they are replicated in other states. Indeed, the provision was reportedly based on model legislation drafted by the National Right to Life Committee (NRLC). Jim Bopp, the NRLC’s general counsel, reportedly wrote a memo noting that the model legislation seeks to use a type of organized crime model to deal with such activities: “The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity.”
The analogy to organized crime will not sustain such a law. As noted above, this is a lawful procedure in many states and the criminalized information would include core political and religious speech under the First Amendment.
The law also makes it unlawful for a person “to knowingly or intentionally receive any proceeds directly or indirectly derived from a pattern of prohibited abortion activity.” That could include a wide array of religious, journalistic, and public interest organizations.
Presumably, tech companies themselves would be protected under Section 230 of the Communication Decency Act (47 U.S.C. § 230). However, it would make it a crime for anyone, including journalists, public interest groups, politicians, and advocates from sharing basic information on abortion services for women in states like South Carolina.
Pro-life states need to be careful not to replicate the record of anti-gun states like New York, which have passed a series of ill-considered laws that resulted in major court losses. There is a tendency in such moments to follow Oscar Wilde’s rule that the only way to be rid of temptation is to yield to it. However, overreach can result in creating new and limiting precedent. The pro-life community needs to switch from years of being on the offensive to being on the defense. It needs now to hold the ground gained in Dobbs while pro-choice advocates must now shift to the offense in litigation after years of defending Roe.
South Carolina has moved to lower its ban from the 20th to the 6th week of a pregnancy.
Here is the critical language:
Section 44-41-860. (A) It is unlawful to knowingly or intentionally aid, abet, or conspire with another person to violate the provisions contained in Section 44-41-830. A person who violates this section is guilty of a felony and is subject to the same penalties as provided in Section 44-41-830.
(B) The prohibition against aiding and abetting a violation of Section 44-41-830 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;
(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;
(3) offering or providing abortion doula services, knowing that the services will be used, or are reasonably likely to be used for an abortion;
(4) providing a referral to an abortion provider, knowing that the referral will result, or is reasonably likely to result, in an abortion; and
(5) providing a referral to an abortion provider and receiving monetary remuneration, or other compensation, from an abortion provider for the referral.