That Facebook post about abortion could land you in jail — if South Carolina legislators have their way | The Foundation for Individual Rights and Expression

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That Facebook post about abortion could land you in jail — if South Carolina legislators have their way

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With Roe gone, some states are rushing to criminalize not only abortion, but talking about abortion.

“I will aid and abet abortion.”

It’s a slogan seen at protests nationwide following the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization.

The phrasing is deliberate. The decision stripped abortion of the constitutional protection it enjoyed for nearly 50 years. Now, with Roe gone, some states are rushing to criminalize not only abortion, but talking about abortion.

Legislators in South Carolina wasted no time introducing a bill that not only would punish performing or inducing abortions with up to 25 years in prison, but would also make it an equally-punishable felony to “knowingly or intentionally aid, abet, or conspire” with another person to obtain an abortion.

Sharing information about obtaining an abortion — even, seemingly, a legal abortion out of state — would be effectively illegal.

To remove any doubt about what aiding and abetting means, lawmakers spelled it out precisely: “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.”

In other words, sharing information about obtaining an abortion — even, seemingly, a legal abortion out of state — would be effectively illegal. So too would maintaining a website providing information on abortion access.

The bill’s breadth is striking — and should be alarming for any South Carolinian who supports free speech.

A vast array of expressive activity — from closed-door discussions between partners to Facebook posts, from consultations with medical professionals to checking out library books — would become grounds for prosecution by the state.

The bill’s vagueness is equally alarming. Is a celebrity’s tweet about abortion “purposefully directed” at South Carolina residents? Has a national magazine with South Carolinian subscribers that publishes an article about self-administered abortions violated the law?

The chill on abortion-related speech that would follow isn’t an unintended side effect. It’s the deliberate aim. And South Carolina lawmakers aren’t alone. The National Right to Life Committee is promoting model legislation with similar provisions.

Sooner or later — given the speed of state lawmakers, likely sooner — "aiding and abetting" prohibitions will be enacted into law and challenged in court. They should be struck down as unconstitutional.

There’s no “abortion exception” to the First Amendment.

There’s no “abortion exception” to the First Amendment. But there is some doctrinal tension between speech advocating future lawlessness, which is generally protected, and speech that facilitates criminal conduct, which is not. For example, courts have upheld convictions for posting bombmaking instructions online, publishing a how-to book about contract killing, and mailing recipes for PCP. With abortion now subject to criminalization like explosives and illegal drugs, bills like the one introduced in South Carolina seize upon this doctrinal tension—and attempt to exploit it. 

They must not succeed. Our pluralistic democracy must not empower states to broadly police and prosecute their residents for personal, political, and medical discussions. 

Americans who support “crisis pregnancy centers” should recognize the danger of broad grants of power to government censors to regulate abortion-related discussions. As Justice Thomas noted in 2018: “Throughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities.”

Even on the hypothetical assumption that speech about abortion could be barred in a state where abortion is illegal, such a bar could not extend to states where abortion remains legal. The Supreme Court got it exactly right in 1975’s Bigelow v. Virginia, when it reversed the conviction of a Virginia newspaper editor for running an ad from a New York abortion rights group. A seven-Justice majority held that Virginia “may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.”

The Court declared that if the conviction were upheld, Virginia and other states would be empowered to censor “a wide variety of national publications or interstate newspapers” carrying articles or advertisements dealing with abortion. That result would be directly at odds with the First Amendment, which “favors dissemination of information and opinion.” Given the borderless flow of information online, this argument is even more compelling today.

Since Bigelow, the Court has even more strongly upheld freedom for advertisements, with some of the very same conservative Justices who overturned Roe arguing that such speech should receive the same robust First Amendment protection as political advocacy. These Justices should not now alter the fundamental free speech principles at stake in the abortion context.

We cannot allow the loss of one constitutional right to aid and abet the violation of another.


Will Creeley is the Legal Director of the Foundation for Individual Rights and Expression and Nadine Strossen is Professor Emerita, New York Law School and former national President of the American Civil Liberties Union

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