South Carolina Outlaws Speech Related to Abortion

States emboldened by Dobbs are testing just how far the Supreme Court will let them go.

WaPo (“South Carolina bill outlaws websites that tell how to get an abortion“):

Shortly after the Supreme Court ruling that overturned the right to abortion in June, South Carolina state senators introduced legislation that would make it illegal to “aid, abet or conspire with someone” to obtain an abortion.

The bill aims to block more than abortion: Provisions would outlaw providing information over the internet or phone about how to obtain an abortion. It would also make it illegal to host a website or “[provide] an internet service” with information that is “reasonably likely to be used for an abortion” and directed at pregnant people in the state.

Legal scholars say the proposal is likely a harbinger of other state measures, which may restrict communication and speech as they seek to curtail abortion. The June proposal, S. 1373, is modeled off a blueprint created by the National Right to Life Committee (NRLC), an antiabortion group, and designed to be replicated by lawmakers across the country.

This would seem to be plainly unconstitutional unless the 1st Amendment got repealed and nobody informed me. It’s true that criminal conspiracy is not protected speech but abortion is legal, at least at some point in pregnancy, in just about every state.

Granted, the current Court majority seems willing to overlook established precedent, at least when it comes to abortion. But I just don’t see how this doesn’t get laughed out of court.

Not surprisingly, I guess, NRLC disagrees:

For the NRLC, which wrote the model legislation, limiting communication is a key part of the strategy to aggressively enforce laws restricting abortion. “The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity,” Jim Bopp, the group’s general counsel, wrote in a July 4 memo, comparing the group’s efforts to fighting organized crime.

In an interview with The Washington Post, Bopp said that the group has refined its blueprint for states since the South Carolina bill was introduced last month. The restrictions on websites and internet hosts in the July model bill language would only apply when the information is likely to be used “for an unlawful abortion in this state,” he said, not abortions generally, as the South Carolina bill says.

The group “tried to be very careful in vetting this so it doesn’t impinge on First Amendment rights,” he added. He said the provision was intended to limit the trafficking of abortion-inducing drugs, which throughout the interview he compared to the trafficking of fentanyl.

Given that the drugs in question are under the purview of the Federal government, I don’t see how the states can criminalize them. But, yes, I could see even a less dogmatic Supreme Court upholding penalties for direct assistance for obtaining illegal abortions within a state.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Just nutha ignint cracker says:

    While I agree that the law oversteps–by quite a bit–you seem to have overlooked the map marking states with trigger laws that you published at this very site. With trigger laws in place in IIRC 10-15 states “but abortion is legal, at least at some point in pregnancy, in just about every state” seems to lack accuracy. But I get playing down the situation–don’t want to alienate the moderates and “good” conservatives, and so on.

    On the other hand, if such laws will help us not get internet links to “The Top Ten DIY Abortion Hacks According to TicTok,” I can’t say the world will suffer for the lack of freedom of speech.

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  2. steve says:

    Just to get into the medical weeds here, sorry but the doctor part is coming out, suppose a woman has had multiple C sections and advised not to have any more children as another section has a high probability of turning into an emergency hysterectomy. Those can turn into a real bloodbath requiring 10s of units of blood and blood products. Long ICU stay. Might die, might not. Woman unintentionally gets pregnant. Risk to mother’s life isn’t high enough to meet standards set by the state. If doc advises early termination (much safer) then doc risks going to jail? If woman asks about termination and doc advises she needs to go out of state doc risks going to jail? (This was pretty much a real case, except we didnt have to worry about going to jail when trying to make the right decision for that woman.)

    Steve

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  3. Michael Reynolds says:

    This is the same play the South tried in the 1860’s when they blocked abolitionist mail and censored abolitionist speech, and thanks to the Taney court* insisted that free states help them enforce slavery.

    The US now has free states and Gilead states. Gilead will not be able to tolerate the free states and will try hard to expand their evil. They’ll fail, just as they did in the 19th century.

    *Still the worst, though the Roberts court is rushing to catch up.

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  4. Holly says:

    New guideline to tell what news is fake vs. real: if it sounds like a plot device from The Handmaid’s Tale, probably real.

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  5. Gustopher says:

    @Michael Reynolds: (from the Ukraine thread, but it seems more on point here):

    Domestically we have some challenges with fascists, but I sense that we may have turned a corner on that. As much as progressive overreach annoys me I believe Republican overreach is even less popular and potentially disastrous for them.

    Progressive overreach is annoying. Republican overreach is a threat to liberty.

    Given gerrymandering and the Senate, I’m not sure a threat to our liberty is going to sway more people in the right places than annoyance. Plus inflation. And Biden is old. And Senator X in some state will do something dumb.

    We are way too close to “balanced on a knife’s edge” for me to be anything other than “cautiously optimistic despite everything.”

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  6. al Ameda says:

    We had the chance to let Sout Carolina go back in December 1860.
    This time let’s not make the same mistake.

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