Why Freedom of Speech Is the Next Abortion Fight
A legal battle in Mississippi will test whether states can criminalize those who merely provide information.
In the middle of July, three big blue billboards went up in and around Jackson, Mississippi. Pregnant? You still have a choice, they informed passing motorists, inviting them to visit Mayday.Health to learn more. Anybody who did landed on a website that provides information about at-home abortion pills and ways to get them delivered anywhere in the United States—including parts of the country, such as Mississippi, where abortions are now illegal under most circumstances.
A few days ago, the founders of the nonprofit that paid for the billboard ads, Mayday Health, received a subpoena from the office of the attorney general of Mississippi. (The state has already been at the center of recent debates about abortion: Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, upheld a Mississippi statute by allowing states to put strict limits on abortion.) The subpoena, which I have seen, demands a trove of documents about Mayday Health and its activities. It may be the first step in an effort to force Mayday Health to take down the billboards, or even to prosecute the organization’s leaders for aiding and abetting criminal conduct.
Mayday Health is not backing down. This week, it is taking out a television ad on Mississippi channels and putting up 20 additional billboards. This makes the legal fight over the Jackson billboards a crucial test in two interrelated conflicts about abortion that are still coming into public view.
The first is that the availability of abortion pills, which are very safe and effective during the first three months of pregnancy, has transformed the stakes of the abortion fight. The pro-life movement has hoped that states’ new powers to shut down abortion providers will radically reduce the number of abortions around the country. The pro-choice movement has feared that the end of Roe will lead to a resurgence of back-alley abortions that seriously threaten women’s health.
Yet the changes wrought by the recent Supreme Court ruling may turn out to be more contained than meets the eye: Legal restrictions on first-trimester abortions have become much harder to enforce because a simple pill can now be used to induce a miscarriage. Abortion by medication is widely available in large parts of the country; as Mayday Health points out on its website, even women who are residents in states where doctors cannot prescribe such pills can set up a temporary forwarding address and obtain them by mail.
The second brewing conflict is about limits on free speech. So long as abortions required an in-person medical procedure, the pro-life movement could hope to reduce them by shutting down local clinics offering the service. Now that comparatively cheap and convenient workarounds exist for most cases, effective curbs on abortion require the extra step of preventing people from finding out about these alternatives. That is putting many members of the pro-life movement, be they Mississippi’s attorney general or Republican legislators in several states who are trying to pass draconian restrictions on information and advice about abortions, on a collision course with the First Amendment.
Some limits on speech are reasonable. States do, for example, have a legitimate interest in banning advertisements for illegal drugs. If a cocaine dealer took out a billboard advertising his wares, the government should obviously be able to take it down. Especially when it comes to commercial speech, some common-sense restrictions on what people can say or claim have always existed and are well-justified.
But the laws that Republicans are now introducing in state legislatures around the country go far beyond such narrow limits on objectionable commercial speech. In South Carolina, for example, Republican legislators have recently sponsored a bill that would criminalize “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.”
This law—which is modeled on draft legislation that the National Right to Life Committee is trying to get passed in many states around the country—would seriously undermine the right to free speech. It could potentially make doctors in states where abortion is actually legal liable to prosecution for discussing their services with someone who calls them from a state where abortion is illegal. It could even outlaw basic forms of speech such as news stories containing information that might be used by someone seeking an abortion. Theoretically, even this article could fall under that proscription.
The subpoena issued by the office of Mississippi’s attorney general is objectionable for similar reasons. Mayday Health is not advertising a commercial product or service. The organization does not handle or distribute abortion pills. All it does is provide information. Although one could reasonably believe that the information Mayday Health is providing may be used to commit acts that are now illegal in some parts of the United States, a ban on informational speech that can be used for the purposes of lawbreaking would be unacceptably broad and vague. After all, would-be lawbreakers might also consult the blog posts of lawyers who explain how to object to an improper search of a vehicle or study the pages of a novel to figure out how to make a Molotov cocktail. Should the attorney or the novelist also be considered to have aided or abetted a crime?
Recent efforts to suppress speech about abortion would seriously undermine the nation’s ability to debate the topic openly and honestly. Anybody who believes in the importance of the First Amendment should oppose them. As Will Creeley, the legal director of the Foundation for Individual Rights and Expression, has pointed out, “These proposals are a chilling attempt to stifle free speech … Whether you agree with abortion or not is irrelevant. You have the right to talk about it.”
In recent years, the wider debate about free speech has undergone a strange transformation. Historically, the American left staunchly defended the First Amendment because it recognized the central part that free speech played in the struggles against slavery and segregation, and in the fight for the rights of women and sexual minorities. But as establishment institutions, including universities and corporations, became more progressive, and parts of the left came to feel that they had a significant share in institutional power, the absolute commitment to free speech waned.
Progressives started to find the idea of restrictions on free speech appealing because they assumed that those making decisions about what to allow and what to ban would share their views and values. Today, some on the extremist left endorse restrictions on free speech, demanding campus speech codes and measures to force social-media sites to “deplatform” controversial commentators and censor what they claim is “misinformation.”
The transformation of the left’s position on freedom of speech has allowed both principled conservatives and the less-than-principled protagonists of the MAGA movement to cast themselves as defenders of the First Amendment. In the mind of many people, the cause of free speech has astoundingly quickly shifted from being associated with left-wing organizations such as the ACLU to becoming the property of right-leaning pundits and politicians.
This makes the new front in the fight over abortion rights an important reminder of why the left should never abandon the cause of free speech. If the left gives up on the core commitment to free speech, what people can say is as likely to be determined by the attorney general of Mississippi as it is by college deans or tech workers. Curbs on free expression have always been a tool of governments that seek to control the lives of their citizens and punish those who defy them. The same remains true today.