The debate about abortion-related commercial speech has long been contentious in the United States. Since 1975, abortion-related publications have been protected under the First Amendment as commercial speech that serves a public interest.[1] However, in a post-Dobbs era, reproductive healthcare providers and advocacy groups are renewing challenges to abortion literature restrictions enacted throughout the U.S.[2]
This blog advocates to restore abortion-related commercial speech as a protected right under national and universal freedom of expression principles. Further, the right to advertise abortion services and promote safe abortion practices is extended extraterritorially, which is increasingly critical in a post-Dobbs era. Pregnant people have a right to access information about where and how to obtain safe abortions regardless of a state’s restrictions of abortion services. This blog is not a debate about abortion and reproductive rights in the U.S.; rather it is an examination of abortion-related commercial speech as a protected freedom of expression.
Abortion-Related Commercial Speech
Abortion-related commercial speech is both a constitutional right and human right with a significant interest to the general public.[3] Abortion-related commercial speech includes the advertising of abortion procedures or medication that can abort or prevent a pregnancy, informational pamphlets sponsored by an abortion provider or manufacturer, or online advertising where to obtain an abortion.[4] Since 1975, abortion-related commercial speech has been protected under the First Amendment.[5] In Bigelow v. Virginia, the Supreme Court unambiguously decriminalized abortion-related commercial speech, stressing that “commercial speech enjoys a degree of First Amendment protection.”[6] The Court held that abortion-related commercial speech, in particular, has a social value beyond a mere commercial transaction because the advertisement “convey[s] information of potential interest and value to a diverse audience.”[7] Forty-seven years later, the right to abortion-related commercial speech must now be re-established.
After Dobbs v. Jackson Women’s Health Organization, questions on the legality of abortion-related commercial speech are in the spotlight again.[8] Abortion advertising is restricted in a dozen U.S. states.[9] Further, after Dobbs, several conservative states aim to impede all access to abortion by enacting criminal statutes for anyone who aids or abets the performance or inducement of an abortion.[10] Actionable conduct under these statutes might include any abortion services advertising – in-person, online, or in pamphlets. This is problematic considering Bigelow, which explicitly endorsed a right to convey abortion advertising services.[11] Although the Dobbs decision “returned to states the power to regulate access to abortion,” abortion-related commercial speech continues to “fall solidly within the realm of First Amendment-protected speech” under Bigelow.[12] However, if the issue were brought to the current majority-conservative Supreme Court, it is difficult to say with certainty that abortion-related commercial speech would remain constitutionally protected.
Constitutional Framework
The First Amendment to the U.S. Constitution enjoins the Congress or a State legislature from making any laws “abridging the freedom of speech.”[13] While this protection is not absolute, a government regulation restricting free expression may be permitted when appropriate.[14] Truthful, factual information will always receive the highest degree of First Amendment protection.[15] Therefore, certain abortion-related speech, including the dissemination of factual information of abortion practices and policy, will be a constitutionally protected expression regardless of a state’s restrictive legislation.
Applying a framework known as the Central Hudson test, courts can regulate commercial speech under the First Amendment if “there is a substantial government interest that is directly advanced by the regulation, and if the regulation is not broader than necessary to achieve that goal.”[16] The outcome of a Central Hudson analysis to abortion-related commercial speech would depend on the jurisdiction, as each state has varying laws restricting this speech. However, courts have interpreted Bigelow to mean that “an activity is ‘lawful’ under the Central Hudson test so long as it is lawful where it will occur.”[17] This would mean that factual abortion-related commercial speech that is not misleading would likely satisfy the Central Hudson test.
Under the Full Faith and Credit Clause, state courts must respect the laws and judgments of courts from other states.[18] The Dobbs decision held that states have the power to regulate access to abortion.[19] Because abortion restrictions now vary by state, advertising an abortion may constitute a crime in one state when it is legal in another state. While there is currently no precedent of inciting abortion purely through speech, the issue will likely be decided in court in the near future to determine if abortion-related commercial speech may be construed as incitement of illegal activity. The Bigelow decision coupled with the Central Hudson test, should theoretically protect abortion-related commercial speech in any jurisdiction, even if the act of abortion is unlawful.[20]
The Commerce Clause of the U.S. Constitution gives Congress the power to regulate interstate commerce.[21] Republican Senators introduced a bill in September 2022 seeking to ban abortions fifteen weeks after pregnancy.[22] The bill’s sponsor maintains that congressional power to regulate abortion stems from the Commerce Clause.[23] If Congress acknowledges that abortion can be regulated under the Commerce Clause, Congress must subsequently acknowledge that abortion-related commercial speech is a constitutionally protected activity. Under the Commerce Clause, states may not impair interstate commerce; restrictions against abortion-related speech can and will negatively impact the trends of pregnant people seeking an abortion in another state.
Abortion-related commercial speech is further protected under universal human rights principles. The Universal Declaration of Human Rights (UDHR) provides that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[24] In other words, the spoken and published speech of healthcare providers and advertisers is protected from interference from state legislation or anti-abortion activists because it is merely the dissemination of factual information. Restrictions to abortion-related commercial speech cannot be protected because they fail to advance a state’s interest in protecting the fundamental right to freedom of expression.
Extraterritorial Advertising Restrictions
For decades, pregnant people have been traveling across state borders to access reproductive healthcare.[25] Whether it is because of proximity to an abortion-provider or due to a state’s restrictive access to abortion, pregnant people have the right to travel outside of their home state to obtain an abortion.[26] Further, a state may not, under the guise of exercising internal police powers, bar a citizen or organization of another State from disseminating information about an activity that is legal in that State.[27] All residents in the U.S. have a constitutional right to interstate travel.[28]
After the Dobbs decision overturned Roe v. Wade, opening the door for states to ban abortion, fourteen states have made abortion illegal.[29] Over a dozen states are actively seeking to restrict abortion access.[30] With these limitations in place, pregnant people in many states will now have to travel hundreds of miles to obtain an abortion.[31] Safe haven states, such as Kansas and Illinois, are seeing an increased demand in abortion care, largely from states with restrictive abortion bans.[32] Many states now seek criminal measures against their residents, or anyone aiding and abetting their residents, for traveling to another state to get an abortion.[33]
Not only have pregnant people been seeking abortion care in states outside of their own, but many have also begun traveling to Canada and Mexico for abortions.[34] Prime Minister Trudeau has made it clear that Canada is open to any American who may need to travel north to access an abortion.[35] Mexico’s recent decriminalization of abortion has “crystallize[d] the shifting policies of two nations that once held vastly different positions on the procedure.”[36] While international borders may be open to receive reproductive healthcare, pregnant people still face barriers, including long waitlists at clinics, increased travel expenses, medical fees, and the need for a passport.[37] Canadian and Mexican reproductive rights activists provide pregnant people in the U.S. virtual, safe guidance from trained professionals that may be far away.[38] Most pregnant people from the U.S. connect with clinics and reproductive rights groups abroad through social media or a referral.[39]
Due to increased interstate travel for abortion access, online advertising has risen to accommodate this growing demand.[40] In the wake of the Roe reversal, “people flocked to social media to share details about how to find and use abortion pills” and where to locate a clinic.[41] Courts will have to weigh in to determine the extent that social media and online outlets can be controlled in jurisdictions where abortion access is restricted. The complexity of online advertising, including location tracking and modes of speech, creates unprecedented challenges to the judicial system.
Human Rights Approach to Protecting Abortion-Related Commercial Speech
Freedom of information is not only a basic human right, but it also promotes healthy and safe abortions. Access to abortion-related commercial speech is particularly important to overcome the stigma and barriers to restrictive reproductive healthcare.[42] Potential pregnant people, including “adolescents, people of color, those living in rural area, those with low incomes, and incarcerated people” face the “disproportionate effects of restrictions to abortion access.”[43] Many pregnant people face complications during the course of their pregnancy that require medically-assisted termination to either remove a nonliving fetus or to save the life of the mother.[44] In cases such as these, it is necessary to protect abortion services advertising to ensure that pregnant people receive factual information and adequate care during difficult times. This information allows pregnant people to make informed decisions about their reproductive healthcare. We cannot begin to address issues of maternal and reproductive healthcare until stronger freedom of information policies are implemented.[45]
While freedom of information is necessary in and of itself, pregnant people should have access to evidence-based information.[46] There are two key components to ensure that information is evidence-based: lack of bias and scientifically accurate information.[47] In the reproductive health sector, there is significant misinformation relating to both regulatory frameworks and methods of abortion available.[48] Misinformation is often used intentionally to confuse, stigmatize, and dissuade pregnant people from considering abortion care or wanting to learn more about abortion.[49] Combating misinformation is essential to increasing the availability and acceptance of abortion-related commercial speech.
State and national health agencies can, in the interest of public health, work to ensure that abortion-related commercial speech that is disseminated is evidence-based.[50] In 2020, the World Health Organization (WHO) responded to misinformation about the COVID-19 pandemic by developing an international framework for health authorities on managing misinformation, facilitating an international agreement to improve access to accurate information, and providing guidelines for a public health research agenda.[51] Misinformation in the reproductive healthcare sector requires similar efforts by the U.S. This might include “partnerships with other nations facing attacks on reproductive rights and poor access to accurate information regarding maternal health broadly.”[52] The U.S. and its partners must focus specifically on “surveillance, impacts and health outcomes, health communication interventions, contextual factors influencing intervention efficacy, and preventive measures” to combat misinformation.[53] Medically accurate and evidence-based information is a basic human right, regardless of one’s view on abortion.
A final concern when protecting the abortion-related speech and reproductive healthcare of pregnant people is privacy. Privacy concerns have had a chilling effect on pregnant people seeking reproductive healthcare.[54] The Fourth Amendment secures the protection of individual’s privacy in their “persons, houses, papers, and effects” from “unreasonable searches and seizures” by the government.[55] Further, the Supreme Court clarified that the Bill of Rights creates several zones that establish a right to privacy.[56] Recent abortion statutes in states like Texas and Oklahoma would require enhanced surveillance of residents to monitor compliance with abortion regulations.[57] In the wake of criminalizing abortion bans, the “Biden Administration proposed new privacy protections to prevent pregnant people’s health information from being used to investigate or sue people who obtain or facilitate abortions.”[58] Fears of criminal investigations have risen in abortion-banned states, among pregnant people, healthcare providers, insurers, or other entities involved in abortion care.[59] The proposed law amends the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule to include protections for reproductive healthcare.[60] Pregnant people not only have a right to receive healthcare information but they have a right to have their private information protected.
Conclusion
Abortion-related commercial speech is a protected freedom of expression under both case law precedent and the U.S. Constitution. Protecting our freedom of expression is instrumental to not only access abortion services but to access information about abortion and reproductive healthcare across the U.S. Abortion-related commercial speech is protected in any jurisdiction, even if the act of abortion is unlawful. The freedom to disseminate information about abortion services will promote the health of pregnant people regardless of race, socioeconomic status, or location. A holistic, human rights approach is necessary to ensure that abortion-related commercial speech remains a protected right.
[1] Bigelow v. Va., 421 U.S. 809 (1975).
[2] Rose Mackenzie, Abortion is Our Right, and We Won’t Be Silenced, ACLU (Apr. 3, 2023) https://www.aclu.org/news/reproductive-freedom/abortion-is-our-right-and-we-wont-be-silenced [https://perma.cc/8XA2-SBMW].
[3] Id. at 822.
[4] Dessie Otachliska, Free Speech Post-Dobbs: The Constitutionality of State and Federal Restrictions on the Dissemination of Abortion-Related Information, N.Y.U. J. Legis & Pub. Pol’y Quorum (2023).
[5] Bigelow, supra note 1.
[6] Id. at 821 (citing Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973)).
[7] Id. at 822.
[8] Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022).
[9] Abortion Advertising Restrictions, The Policy Surveillance Program, LawAtlas (November 2022), https://lawatlas.org/datasets/abortion-advertising-restrictions [https://perma.cc/M88H-ZLCP].
[10] H.B. 4327, 58th Leg., 2d Sess. (Okla. 2022) (enacted); S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021) (enacted); see also After Roe Fell: Abortion Laws by State, Centre for Reproductive Rights, https://reproductiverights.org/maps/abortion-laws-by-state/ [https://perma.cc/J6TL-5PNV].
[11] John Villaseor, Can a state block access to online information about abortion services?, Brookings (July 27, 2022), https://www.brookings.edu/articles/can-a-state-block-access-to-online-information-about-abortion-services/ [https://perma.cc/TG82-3SF7].
[12] Id.
[13] U.S. Const. amend I.
[14] See Gitlow v. New York, 268 U.S. 652, 666 (1925); Elrod v. Burns, 427 U.S. 347, 360 (1976).
[15] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).
[16] Central Hudson Gaw & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980).
[17] City of Worcester, 851 F. Supp. at 315 (citing Katt v. Dykhouse, 983 F.2d 690, 696 (6th Cir. 1992); Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir. 1984); see also Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 607 (9th Cir. 2010).
[18] U.S. Const. art IV, § 1.
[19] Dobbs, supra note 8.
[20] Bigelow, supra note 1; Central Hudson, supra note 16. See also, Brandenburg v. Ohio, 395 U.S. 444, 447 for a test the Supreme Court uses to recognize if an expression is likely to incite imminent illegal activity.
[21] U.S. Const. art 1, § 8, cl. 3.
[22] S. 4840, 117th Cong. § 2 (2021-2022).
[23] Id.
[24] U.N. Universal Declaration of Human Rights (UDHR) art. 19.
[25] Bigelow, supra note 1.
[26] Id. at 824
[27] Id. at 824-25.
[28] U.S. Const art. IV; see also Dobbs, supra note 8 (Kavanagh J, concurring).
[29] After Roe Fell: Abortion Laws by State, supra note 10.
[30] Id.; see also Press Release, National Right to Life Committee Proposes Legislation to Protect the Unborn Post-Roe, NRLC (Jun. 15, 2022), https://www.nrlc.org/communications/national-right-to-life-committee-proposes-legislation-to-protect-the-unborn-post-roe/ [https://perma.cc/D5BM-JWRL].
[31] Remaking America: Crossing State Lines for Abortion Care, NPR (May 11, 2023) https://www.npr.org/2023/05/11/1175530713/remaking-america-crossing-state-lines-for-abortion-care; see also Elevated Access (describing the ways that patients and advocates are crossing borders to receive an abortions and gender-affirming care).
[32] Remaking America, id.
[33] See Remaking America, id; see also, H.B. 4327 and S.B. 8, supra note 10.
[34] Zolan Kanno-Youngs and Edyra Espriella, A New Border Crossing: Americans Turn to Mexico for Abortions, N.Y. Times (Sept. 25, 2023), https://www.nytimes.com/2023/09/25/world/americas/mexico-abortion-women-border.html [https://perma.cc/7BC4-FZSB]; Andy Blatchford, Canada is open to Americans who may lose access to abortions, but there’s a catch, Politico (May 5, 2022), https://www.politico.com/news/2022/05/05/canada-americans-access-abortions [https://perma.cc/YB3P-BQUK].
[35] Blatchford, id.
[36] Kanno-Youngs and Espriella, supra note 34.
[37] Blatchford, supra note 34.
[38] Blatchford, supra note 34; María Teresa Hernández, Activists’ network in Mexico helps U.S. women get abortions, AP News (Apr. 2, 2023), https://apnews.com/article/abortion-pills-bans-mexico-us-border [https://perma.cc/H7AS-NYYZ]. See also, ECHR, Open Door and Dublin Well Woman v. Ireland, App. No 14234/88 (discussing the history of extraterritorial travel from Ireland to Great Britain to obtain an abortion and the protections of abortion-related commercial speech in the European Union.).
[39] Hernández, id.
[40] Mackenzie, supra note 2.
[41] Megan Burbank, Abortion Activists Rely on Social Media More Than Ever After Roe—and That Has Risks, The New Republic (Sept. 29, 2022), https://newrepublic.com/article/167886/abortion-funds-roe-dobbs-social-media [https://perma.cc/8ZGE-EFXP].
[42] Id.
[43] ACOG Committee Opinion, Increasing Access to Abortion, 136(6) Obstetrics & Gynecology e107 (Dec. 2020); see also, Access to Abortion is a Human Right, Human Rights Watch (Jun 24, 2022) https://www.hrw.org/news/2022/06/24/qa-access-abortion-human-right (“Unsafe abortions is a leading cause of maternal mortality and morbidity” around the world.).
[44] Lemmers, et. al., Medical treatment for early fetal death (less than 24 weeks), 6(6) Cochrane Database Syst. Rev. (Jun. 17, 2019).
[45] Human Rights Watch supra note 43.
[46] Addressing Barriers to Safe Abortion, International Federation of Gynecology and Obstetrics (FIGO) (Sept. 2021) https://www.figo.org/sites/default/files/2021-09/FIGO_Statement_Addressing_Barriers_to_Safe_Abortion_EN.pdf
[47] Lucía Berro Pizzarossa and Patty Skuster, Toward Human Rights and Evidence-Based Legal Frameworks for (Self-Managed) Abortion, 23(1) Health Hum. Rights 199 (Jun. 2021).
[48] Id.
[49] Facts Are Important: Identifying and Combating Abortion Myths and Misinformation, ACOG (2023), https://www.acog.org/advocacy/facts-are-important/identifying-combating-abortion-myths-misinformation [https://perma.cc/NPZ3-PJPB].
[50] Sarah C.M. Roberts, et al., A 21st-Century Public Health Approach to Abortion, 107(12) Am. J. Pub. Health 1878 (Dec. 2017).
[51] World Health Organization (WHO), Infodemic, https://www.who.int/health-topics/infodemic#tab=tab_1 [https://perma.cc/P6M8-3LAW].
[52] Pagoto, et al., The Next Infodemic: Abortion Misinformation, 25 J. Med. Internet Res. (May 2023).
[53] Id.
[54] Jarrett Renshaw and Ahmed Aboulenein, New Biden rule seeks to protect women crossing state lines for abortions, Reuters, https://www.reuters.com/world/us/biden-administration-abortion-rule-seeks-protect-women-crossing-state-lines-2023-04-12/ [https://perma.cc/VX9A-BQ4W].
[55] U.S. Const. amend IV, supra note 18.
[56] Griswold v. Conn., 381 U.S. 479, 484 (1965).
[57] See e.g., H.B. 4327 and S.B. 8, supra note 10.
[58] Renshaw and Aboulenein, supra note 54.
[59] Id.
[60] HIPAA Privacy Rule to Support Reproductive Health Care Privacy, 88 FR 23506 (Apr. 17, 2023).
