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A reckoning around reproductive rights and the First Amendment is brewing for after the midterms. Last week, a large group of conservative states announced an effort to defend the constitutionality of South Dakota’s law prohibiting advertising any item “designed, adapted, or intended for producing an abortion.” Enforcement of the law has been blocked by a district court and the 8th Circuit Court of Appeals while proceedings continue. Meanwhile, the 7th Circuit last week affirmed an earlier ruling blocking an Indiana law that made it a crime to aid a minor seeking an out-of-state abortion on similar grounds.
These are among many developments that point to an emerging trend: States that have found it impossible to enforce abortion laws are focusing instead on shutting down information about abortion, and are doing so in a way that might pose a back-door challenge to the shield laws that have made abortion pills available even in states where abortion is a crime.
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Since the fall of Roe v. Wade, states that ban abortion have struggled to enforce their laws. Much of that reflects the availability of telemedicine services. In data published last June, the Society for Family Planning found that telehealth procedures have accounted for roughly 40 percent of the total in states where abortion is legal, and north of 97 percent of abortions in states that criminalize the procedure. The total number of procedures also appears to be on the rise. This state of affairs has been an endless source of rage for the leaders of conservative states, who fought for decades to end the right to choose abortion only to see abortion numbers increase.
The easiest solution for ban states would involve intervention by the Trump administration. Current Food and Drug Administration rules authorize telehealth access; the Trump FDA could change that. The Trump Department of Justice could give in to the request of abortion opponents to treat the Comstock Act, a 19th-century obscenity law, as an abortion ban.
It is no surprise that anti-abortion groups are hoping that the Trump administration is simply biding its time before imposing new national limits after November’s midterm elections, when President Donald Trump will presumably be less afraid of blowback. The Food and Drug Administration plans to release the results of a study on mifepristone safety in March. Many expect the study to justify an end to the current rules governing telemedicine, even though mifepristone’s safety record is well established. Attorney General Todd Blanche also suggested to a group of religious conservatives that he would use the Comstock Act to crack down on the mailing or receipt of any abortion-related item after the midterms.
But there is no guarantee for conservatives that the Trump administration will deliver on any of their priorities. And even if the administration did resurrect the Comstock Act or reimpose in-person dispensation requirements for mifepristone, there would be open questions about enforcement. The FDA and Department of Justice have limited resources, and given what has happened in the first two years of Trump’s second term, there is no reason to think that abortion will instantly become an enforcement priority for the president.
And then there are the difficulties involved in proving that an abortion took place—and that any procedure did not fall under one of the narrow statutory life or medical necessity exceptions written into most bans. It is most likely that a federal enforcement strategy—if one ever comes into being—will rely on making an example of a high-profile defendant and hoping others will be too frightened to mail or receive abortion pills. Actually identifying the vast majority of doctors who facilitate abortions would be challenging, to say the least.
That’s one of the reasons that attacks on abortion-related speech are gaining steam: Conservatives recognize that it may be more effective to attack shield laws by policing the information available to abortion-seekers. Conservatives are particularly committed to winning on a legal question running through many speech-related cases currently in state or federal court: Can states prohibit speech that discusses something that is legal or even constitutionally protected somewhere else?
South Dakota argues that its ban on abortion advertising doesn’t violate the First Amendment because that advertising constitutes speech integral to criminal conduct, like hiring a hitman. Similar logic explained the decision earlier this year of a Florida judge who refused to dismiss a lawsuit filed by James Uthmeier, the Florida attorney general, that seeks more than $500 million from Planned Parenthood for false advertising based on the claim that mifepristone is as safe as Tylenol. Indiana, like Idaho and Tennessee, seeks to prohibit speech they designate as “abortion trafficking,” making certain speech criminal if it facilitates a minor’s out-of-state travel for abortion. Even progressive states are interrogating the line between speech and illegal conduct: In California, a trial that ended in September asks whether crisis pregnancy centers violated state consumer protection law by claiming without evidence that pill-based abortions can be reversed. A verdict there is expected soon, and any appeal will inevitably land in federal court, and raise similar questions about free speech.
The cases now before the courts have differences between them. Mifepristone, for example, has a safety record established through years of study. The same is not true of abortion-pill reversal, a protocol in which patients take doses of progesterone after taking the first of two pills in the standard regimen for abortion medication. The only gold-standard study on the safety of the protocol was stopped after patients enrolled in the study experienced serious complications that required a visit to the emergency room. That means that the safety and efficacy of abortion-pill reversal simply aren’t clear, and the evidence we have offers reason for concern.
Conservatives have teed up any number of challenges to shield laws in court, but focusing on speech may be another way to undermine them. In each of the speech-related cases, conservatives advance the claim that when state laws clash, it is the ban state’s law that should control.
So far, that argument hasn’t carried the day. A district court in South Dakota has temporarily blocked the enforcement of the advertising ban as applied to Mayday Health, which focuses on education about reproductive options. The court reasoned that while a state may be able to prohibit directly advertising for abortion services that are illegal in South Dakota, Mayday instead “spreads what it believes to be accurate information about abortion pills, including links to abortion pill merchants, with the intent of informing people that they have choices.” But there is no predicting what will happen as more claims move into the courts, especially when conservative state or federal judges are the ones making the decision.
The upshot is that shield laws will be facing another threat after the midterms that has comparably less to do with the Trump administration. Instead, the fate of these laws may turn partly on which states get to decide when speech about reproductive health is a crime.