The Abortion Medication Ruling Threatens Free Speech Online

The US District Court decision to block access to the abortion pill mifepristone  has threatened the most common form of abortion.  In his ruling, Judge Matthew Kacsmaryk invoked the long-dormant Comstock Act, an 1873 Victorian-era law that targeted obscenity, contraception, and abortion materials sent through the mail. While nearly all of the Comstock Act has been held to be unconstitutional, the provisions regarding abortion-related material were never explicitly overturned—and Kacsmaryk’s use of the Act in his decision may revive a little-known provision from the 1990s that allows it to apply to telecommunications law.  This decision is a harbinger for a broader crackdown on abortion-related content on the internet.

The Comstock Act’s renewed relevance to the internet age can be traced to its incorporation into the Communications Decency Act (CDA) of 1996. During the passage of the CDA, legislators enacted two critical amendments. The first, the Cox-Wyden Amendment, provides immunity for online platforms’ content moderation decisions, and is widely credited with laying the groundwork for Section 230, which built the internet as we know it today. The second amendment, the Hyde/Comstock provision, was designed to have the opposite effect by dangerously restricting online speech. It criminalizes the use of an “interactive computer service” to disseminate “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

The ACLU challenged the Hyde/Comstock provision immediately after it passed,  in Sanger v. Reno. However, the Clinton administration stated they would not enforce the provision and the judge therefore dismissed the law citing that the plaintiffs lacked “credible fear of enforcement.” So though the Hyde Amendment has remained dormant since, it has never been removed from the law. With the current Supreme Court’s hostility towards abortion rights, there is an increased risk that the amendment could finally be enforced, potentially holding websites and social media platforms liable for abortion-related content and chilling online speech.

This risk is not hypothetical as the anti-abortion movement continues to grow bolder to limit access to abortion. Recently introduced legislation in Texas and Iowa illustrates this growing push to censor abortion-related content on the internet. In Texas, State Representative Steve Toth introduced the “Women and Child Safety Act,” (HB 2690) which imposes civil and criminal penalties for actions related to the provision of abortion-inducing drugs and the facilitation of abortions. Crucially, the bill also targets Internet Service Providers (ISPs) that host websites promoting or providing information on abortion. (The bill explicitly lists specific websites to be censored by ISPs, including as AidAccess.org and PlanCpills.org.) If enacted, this bill would empower vigilantes to bring private lawsuits against ISPs to force them to censor content related to abortion access. 

These state-level bills rely on private lawsuits by members of the public rather than state enforcement. This circumvents the process for civil rights organizations to challenge an unconstitutional law in court because, in those cases, federal courts require a defendant to be a government official in charge of enforcing that law. And because private citizens, not the government, are enforcing censorship, tech companies or users cannot sue to block enforcement before the laws go into effect. This defeats the bedrock principle of judicial review of our laws. With one neat little trick, anti-abortion activists have figured out how to undermine key constitutional rights.

This type of vigilante enforcement is how anti-abortion activists were able to first restrict access to abortion in Texas through SB8 bounty bill in 2021, before the Supreme Court overturned Roe v. Wade. The fear of litigation is sufficient to chill conduct and induce the desired outcome. As a result, potential civil liability—or the likelihood that they may be sued and incur significant legal costs and damages—could accrue to tech companies for maintaining access to abortion-related information.