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.
A conspiracy to commit a crime is also a crime. The burden of proof in this age of the cloud will be astronomically difficult…
SC cannot make it a crime to tell someone where abortion is legal.
Barnum: well, S.C. is doing just that, which is Turley’s point.
So-called conservatives destroying the 1st Amendment will make it much easier to destroy 2nd Amendment gun rights. If the “ends” justify unconstitutional “means” on the 1st Amendment, that same logic would apply to the 2nd Amendment.
The Bill of Rights and U.S. Constitution are a package deal, not an a la carte menu. You follow all of it or none of it. If the U.S Constitution is fundamentally flawed you amend it, not disregard it.
Lower courts will quickly strike this down upon a legal challenge.
Contrast this with the way lower courtsd for decades upheld handgun bans on the merits, claiming that the 2nd Amendment is only a collective right.
Ashcroft:
Conservatives are not trying to abolish any Constitutional rights. The disagreement is whether this could be considered aiding and abetting a crime that they view similar to infanticide. Conservatives support the Constitution and Originalist Justices. If the courts decide this violates free speech, as I think they will, then the Constitution takes precedence.
It’s actually Democrats who blatantly want to abolish or diminish the Constitution. They go after free speech, freedom of religion, the Electoral College, the 2nd Amendment, the separation of powers, and the existence of the Supreme Court with some regularity.
Losing a court case does not put Conservatives in the same boat as Democrats who are pulling to erode the Constitution.
Projecting.
Karen, you aren’t a “conservative”–you are a Trump fan. There is a big difference. Elevating Trump fans to the status of being “conservative” is an insult to real conservatives. Please read writings of REAL conservatives, like Bill Kristol, George F. Will, Rick Wilson and George Conway, among others, who can explain to you why Trumps fans like you are NOT conservatives. You also don’t understand anything about the Constitution or so-called “originalists”, other than the drivel that is served up on the Fox propaganda network. And, no, it’s not Democrats who want ot “abolish or diminish the Constitution”, either, nor are Democrats the ones who are “going after” free speech. It’s REPUBLICANS who are doing these things–to wit as just a few examples: DeSantis banning books in Florida schools, commanding teachers about the content of discussions on race, slavery, transgenderism and other culture war items that hook people like you. It is REPUBLICANS in S. Carolina who are trying to outlaw speech in which anyone, including people on the internet, advise a woman where she can seek to safely terminate a pregnancy. No Democrat in pubic office has ever promoted anything like this.
The Constiution does not cover every specific example of what is intended to be included in rights it establishes, nor was it intended to do so. But so-called “originalists” believe that if it’s not in the Constitution, then the right doesn’t exist. That was never intended. For instance, the Fourth Amendment speaks to privacy in a someone’s “person, home and papers”. It doesn’t mention your telephone, tablet or computer or your home security camera images, items that the founders could not have even imagined. The government cannot take or monitor these items without a warrant because of the Fourth Amendment. Abortion, contraception, consensual sex between adults and marriage equality aren’t mentioned either, but each of these rights involves privacy and the right to personal liberty. The Constitution makes clear that a person’s rights do not depend on their address–no state can take these rights away. That is, until the Trump judges took over. Never before in US history has a right found to be guaranteed by the Constitution by the SCOTUS been taken away by a subsequent court. And, when you consider that all four of the “justices” who are taking away these rights were nominated by a president who lost the popular vote, that 3 of them were nominated by someone whose entire “presidency” is invalid because he cheated to get into office, that 4 of them LIED about their position on the right to abortion just to get onto the Court, and that Republicans rigged the system to deny Barak Obama a SCOTUS pick, it’s no wonder that Americans are mad as hell.
Karen,
Yours is a fair assessment. The law as described is unconstitutional on its face. I believe that it is a poorly crafted attempt to limit the ability of pro-abortion groups to set-up shop in the state to promote ‘abortion tourism’ to locations where the practice is legal.
The simple answer is to use the Tor browser.
It’s going to take awhile for all those elected to learn that the current SCOTUS is serious about the rights of the states and the people. This means the lobbying industry will also have to factor that in. Activist lawyers will be out of sync with a constitutionalist SCOTUS majority. South Carolina needs constitutionalists advising them; dump the activists.
SC “legislators have sought to criminalize any effort to ‘aid, abet or conspire with someone’ to obtain an abortion.”
I guess some don’t like the implications of their own premises.
*If* abortion is a crime (like arson is), then aiding, abetting or conspiring to commit that “crime” is also a crime.
And once again, “free speech” is not a magic eraser.
The problematic provisions are these.
But it is only a crime in SC. Can SC also punish speech about gambling or prostitution that is legal elsewhere? Or can NY State punish speech that tells you what states have laws that make it easier to purchase a firearm or what states have no sales tax?
“*If* abortion is a crime (like arson is), then aiding, abetting or conspiring to commit that “crime” is also a crime.”
Only in that state. State laws don’t apply across state boundaries.
Meyer,
You raise an interesting point. Prostitution is illegal in SC as is soliciting prostitution. The charge of solicitation does not require that the act being solicited take place in the State,
only that the solicitation itself take place within the State. If, for example, you set-up a web site promoting a Nevada brothel that specifically targeted people in SC as potential customers you could, in principle, be charged with soliciting prostitution.
To look at this issue with a wider view I think that what is killing us as a political nation is the primary system. The primary system forces Democrats to the left and Republicans to the right and the vast middle gets no representation in the general election. This is how we will get a Joe Biden acting like Bernie Sanders rather than the moderate moron that he had been for many years.
As if having a “moderate moron” as President is somehow a blessing…
Mistress, better than a radical moron.
The far right will cost Republicans many votes in November due to these rigid lunatics that are never happy until they are screaming into the wind, alone and in the minority. They are no different from the far left nuts that will never compromise because they think that they and they alone have the truth on their side.
The only other thing that could harm the republicans is if Trump announces he is running prior to November. I honestly believe that the same right wing nuts that are demanding a complete ban on abortions, including rape and incest cases, are the same nuts that want Trump and only Trump even though he obviously has some huge issues going forward. They are also the ones that will never get the vaccine simply because others are telling them to get it. I AM AGAINST MANDATES, but you can be against mandates and still get a health measure that will help you if you get Covid.
“The only other thing that could harm the republicans is if Trump announces he is running prior to November.”
*Everyone* knows Trump is running.
I stand by my point that if he announces PRIOR TO November it will hurt Republicans. Care to argue my actual point?
RE:”I stand by my point that if he announces PRIOR TO November it will hurt Republicans. ” He has to be challenged in the Primary and defeated. I’d be obliged to support the ticket if he weren’t but his persona is wanting and wearing on me.
Trump is a cancer and he must be excised. But so must Hillary, Obama, Biden, MSM, FBI, DOJ, US Congress, BLM ANTIFA, loafers, sloths, whining Americans…..at this rate, will we have enough scalpels? will a dull blade do?
😉
“Trump is a cancer and he must be excised.”
Estorvir, I’ll ask you the same as I asked Hullbobby. Trump has only been in the Presidential Arena for 6 Years, I would think people could spit it out what there leading problems with Trump are. Can You?
Hullbobby,
The SCOTUS, based on Law & the USC Decided Abortion is under the states authority, the the Federal Govt.
Trump didn’t make that decision.
Can you tell me 4 or 5 major issues that make you dislike Trump?
“I would think people could spit it out what there leading problems with Trump are. Can You?”
Oky, this has been a continuous problem with people. Who cares whether they like a Presidential candidate. This isn’t a popularity contest.
I understand people have a lot they don’t like about him, but did he move the Republican Party in the right direction? Yes. Is he better than any Democrat alternative? Absolutely. Then why are they complaining? Vote for someone else in the primary.
Texting too much? So what.
Multiple divorces etc. So what? Sexual expression one doesn’t like? No one is being asked to become his spouse. We want a leader.
Morality? Trump is not a religious man or a preacher. So what? Did he promise before elected to do certain things? Unlike other candidates, he actually did what he promised or tried hard to accomplish the promises. Doesn’t that indicate a certain type of morality? Yes. He keeps his pledges to his voters.
Did he enhance America? Absolutely, and in all ways foreign and domestic.
I understand if people have different choices for a candidate. In the primary, during that short period when I was a Republican I didn’t vote for Trump. Some say they can’t stand him so they voted for Biden or didn’t vote, canceling their vote. They should not complain that we have Biden because the election was between Biden and Trump and not between Biden and someone else.
Religion is a strong part of many people, and that is a good thing. Some religious people don’t like him because his character doesn’t live up to their standards. They may be right, but is Biden really a Catholic? He was born Catholic but he is a Catholic in name only and doesn’t live by the good book which even none Catholics and non-religious people can live by.
If people want to tear Trump apart, go ahead and do so, but state why and provide specific reasons. Tell us why Trump is worse than the alternative should he be nominated again. Some want DeSantis. Fine, he is an excellent choice, but the primaries will decide who will be the nominee.
Let’s quit the virtue signaling at Trump’s expense and soothe those we are trying to defeat. Trump is not a bad guy, he isn’t the perfect man but a better leader than most. Don’t be afraid of saying good things about Trump. He is an American who loves America. I’m sorry to anyone who feels Americans aren’t good people and that the American ideal is faulty. Most of us emigrated from somewhere else and came to America to build a better life. Let’s not import those things we ran away from.
RE:” Let’s not import those things we ran away from…” The ‘mporters’ of such things are too far distant from the experiences of their forebears for it to matter. Unlike the Cuban-Americans of Florida, for example, who will never forget, that legacy has not been handed down to the others.
ZZ, I know it is my fault, but I am having a hard time making sure of precisely what you said.
“Trump is a cancer and he must be excised.”
Estovir, I like you and most of what you say, including the morality you call for. However, I think you need a new cytologist. 🙂
Estovir, I still cannot leave your comment alone, not because of its nature but rather because it surprises me that an intelligent person like yourself is the one that made it.
I hold you in high esteem. Such a statement represents over-the-top hyperbole from an intelligent individual.
You said it and left it to another to correct it. Assuming Trump is a cancer (he isn’t), he is benign and might create a bit of ugliness while shining light on the metastatic cancer of the left that is killing the country.
Estovir says:
“Trump is a cancer and he must be excised.”
About time. What took so long?
Zzdoc says:
“He has to be challenged in the Primary and defeated.”
Finally turning on Trump? Great! Join the club!
RE:”Finally turning on Trump? Great! Join the club!..” Methinks yon Silberman doth celebrate without cause. I NEVER cared for his ‘style’. It was his promise and what he delivered that counted. Were he as glib as his predecessor, or a JFK as example, he’d be a tougher act to beat.
Zzdoc,
Trump should have promised to stop being a chronic liar just like he promised to stop being a birther.
Blame Hillary for the birther story. Blame yourself for believing Trump is a chronic liar when you can’t repeat the lies he made.
RE:”Trump should have promised to stop being a chronic liar just like he promised to stop being a birther.” Well that’s certainly irrelevant to the conversation, isn’t it. He he done so, it’s quite clear from your track record that it wouldn’t have changed your opinion of him. You just need to constantly have the last word. Ever consider that sometimes a conversation has reached a necessary end? LIKE NOW!!
Zzdoc,
Had Trump ceased lying after he had become President, I might have changed my opinion of him. Turley too. Not surprisingly, once a conman, always a conman.
RE:” Had Trump ceased lying after he had become President,…” OK…I’ll play ‘have the last word with you. What do you suppose we’re getting out of ;”Hide’n Biden’ ‘The Truthsayer’? 900,000 ‘getaways’ crossed our Southern border since he took office and our borders are ‘secure’? Could anyone lie better!?!?! In 18 months his own party wants done with him for the host of reasons we are all struggling with at this writing. Trump finished 4 years with a legacy of pluses you’ve already heard poured into your ear enough. It’s the informed electorate which should separate the wheat from the chaff and decide where the advantage lies. Biden’s been ‘flying off the beam’ since January 2020. When one can seat a heartbeat away from the Presidency, a total embarrassment for a running mate who, in her own right, could not garner support sufficient to the extent that she packed up and pulled out BEFORE the Primary one has to see a serious lack of judgement. The woman can’t even string words together to form an intelligent comment. In his campaign he was clear that he was out to cripple the energy industry and he still persists in catering to a minority of socio/political and economic revisionist who advocate an Orwellian view for the world .Biden’s planning ’emergency’ policies to deal with climate change when I can’t find peanut butter on the shelf in my store and we have yet to gear up for baby forumula. With Trump we had guns and butter. What do we have with Biden? Utter Disaster!! But you couldn’t deal with Trump’s lies. So you gave us Biden, like my dumbass doctor friend down the road who didn’t like ‘the man’ notwithstanding the accomplishments. Thanks, but no thanks.
Turley didn’t vote for him twice. I rest my case.
RE:”Turley didn’t vote for him twice. I rest my case…” That’s Turley’s bad move, and no criterion for justifying support for Biden. Wrecking a nation’s energy production to satisfy the whims of a minority of idealists who don’t have a plan or a clue, then having to go begging to the world’s dictatorships sucking up for oil, which is ok to use for energy as long as the U.S. isn’t producing it, whilst the potential instrument of our demise, China, as well as others, continue to burn coal, pollute the atmosphere, and remain unbound and uncommitted to rescue the planet…….I’ll retire to bedlam!!
Zzdoc,
Your lies are old, but I admit you tell them very well! Mazel Tov.
Who was it that said character matters? Turley dismissed Trump’s character long ago when he called him a “carnival snake charmer.” Whatever his supposed accomplishments, I refuse to vote for a chronic and habitual liar. I’m funny that way. I also did not vote for Biden for a different reason.
RE:”Your lies are old, but I admit you tell them very well! Mazel Tov…” Nothing in my comment you responded to with this is untruthful. The remainder of your comment is your personal preference and accepted as such.
P>S> One more thing. Those young snotty environmental activist congressional aides who invaded Schumer’s office pitching a b because nothing’s being done/? They’re not in D.C.to become the next great generation of plumbers, pipe fitters, and truckers.They are there to be groomed for the ‘new bourgeoisie’,on the viewing stand and in control after the great reset. Not standing in the queue with the ‘new proletariat’ waiting for the stale bread which is never delivered..
Zzdoc,
Let me guess- you are one of the forgotten men who cling to their guns and Bible who live in fly-over country?
RE:”Let me guess- you are one of the forgotten men who cling to their guns and Bible who live in fly-over country?” You guess incorrectly which, but gives us all pause to reflect carefully on anything you might opine on. You but hoist yourself by your own petard. Mazel Tov!!
Zzdoc,
Who are you? Tell us. Don’t be shy!
RE:”Who are you? Tell us. Don’t be shy!” All you need to know is my take on matters under discussion in these pages. Deal with it.
Not according to his niece, Mary, who says that he’ll only run if he thinks he can win. If the tide turns against him, which it appears to be doing, she believes he won’t run because his massive ego couldn’t take a second hit. You could only scream “stolen landslide victory” once and get away with it. He’s not announcing that he’s running because he’s milking his fans for everything he can. If he were officially running, federal campaign finance laws would limit what he could do with the monies he is raking in for his “rallies” and his “fundraising”. He’s using these funds for all sorts of things, like paying his personal debts and paying expenses for other candidates, all of which would be illegal at the point at which he announces his candidacy. But if he makes clear he isn’t running, the cash would dry up. Never forget that Trump has always been a grifter, and still is.
This may come as a great surprise to you, but for nearly 2,000 years abortion was considered a heinous act, at least in the civilized West. Again, a child conceived by rape or incest is not the responsible party, and should not be murdered to assuage anyone’s shame or fear. As for the “vaccine,” it isn’t, and has been shown to be largely ineffective over time. Funny, the tenor of YOUR comment suggests (to paraphrase) you think and you alone think you have truth on your side.
“[A] child conceived by rape or incest is not the responsible party, and should not be murdered to assuage anyone’s shame or fear.”
You want the government to compel a rape or incest victim to carry a fetus to term?!
That is unspeakably evil. (But at least it’s consistently evil.)
Hullbobby,
The SCOTUS, based on Law & the Decided Abortion is under the states authority, the the Federal Govt.
Trump didn’t make that decision.
Can you tell me 4 or 5 major issues that make you dislike Trump?
Hullbobby,
The SCOTUS, based on Law & the USC Decided Abortion is under the states authority, the the Federal Govt.
Trump didn’t make that decision.
Can you tell me 4 or 5 major issues that make you dislike Trump?
When the 14 year old girl hops in the back seat of her boyfriends car at the drive in theater and is about to get laid, she says: I gotta get my check!
What she means is her welfare check after she has the baby.
The pro lifers are like the dog that caught the fire truck. You cannot criminalize speech about an activity that is legal in at least one state. Case closed.
RE: Ironic considering the role SC and its Member of Congress played in getting Biden into the White House. Biden didn’t carry the state in the final, but the Democrats therein certainly rescued him from defeat in the primary.
I agree. I oppose abortion in general but I also am a free speech absolutist and see no reason or need to restrict speech for any reason except to incite violence. It must be discussed because voters must be able to make decisions based on facts and truths. I will fight suppression of free speech by either side. If passed this law should be immediately struck down.
Just like the left?
I’m pro life and opposed to the attack on FREE speech.
It’s already universally unlawful to elect abortion of a human life for causes other than an equal right to self-defense through reconciliation. Civilized society has a compelling cause to discourage abortion in darkness, under a veil of privacy, murder, a wicked solution to a purportedly hard problem: keep women, and ten year-old girls, affordable, available, and taxable.
Women, men, and “our Posterity” are from Earth. Feminists are from Venus. Masculinists are from Mars. Social progressives are from Uranus.
These SC pols will ruin it for all of us. This is red meat for the left. I can’t believe that they would be so stupid as to try something like this.
“I can’t believe…”
This was obviously going to happen…humans being human, what a surprise.
The ancient mystery of sex and conception. Denying a woman and man’s dignity and agency. Reducing human life to negotiable commodities. Demos-cracy is murdered… aborted in darkness. Human rites are performed at the twilight fringe for social, redistributive, clinical, political, and fair weather causes. Women, and ten year-old girls, men, too, should expect more from a civilized society.
I live in SC; this is just one of many problems in my state.
This might be a good time to move to one of the states without many problems.
I’ve lived here all my life, 72 years. I’d rather work toward making SC a better place to live for my children and grandchildren.
Awesome. Maybe you can use the states that don’t have many problems as templates for making SC better.
RE:”This might be a good time to move to one of the states without many problems…” The way the mindsets appear to be persuaded in these ‘Untied’ States, that right might ultimately be infringed upon as well. Presently Oklahoma law makes it unlawful for a resident of that state to seek an abortion elsewhere.
Free speech cuts both ways. Stop it SC.
And so it goes, a constant fight to stop the authoritarians from stealing our rights.
Currently the lefties are leading the pack, but Republicans won’t be far behind.
Thanks to Turley for alerting us.
Ok, this is where, for me, it goes too far. I am a pretty non-partisan person, and I am fine with states making their own rules, but dang – I would sure love it if the extremists would get the heck out of our business. Most of us do not support bartering rights for other rights, and I hope it either dies in legislature or the people go clay pigeon on it (shoot it down). This is NOT going to accomplish anything but to subjugate and make us further mired in a ridiculous, divisive, quagmire. It’s got to stop, and someone, in some position of authority in some party has got to be the one to say enough.
Old school Republicans and new school Democrats really are the devil and have nothing to do with we the people.
It should be unlawful to knowingly/unknowingly, intentionally/unintentionally, to (insert thing you don’t agree with) by anyone, anywhere, at any time ..