The Anti-Abortion Movement’s Attempt to Criminalize Abortion Speech

Abortion rights activists at the Women’s March on Oct. 8, 2022 in Los Angeles. (Sarah Morris / Getty Images)

Censorship is a dirty word in America, and so it should be. It imposes silence upon speech, creating an empty void which instead should be filled with debate and discussion. As anti-abortion lawmakers continue to draft legislation to limit abortion access, opponents of new bans are horrified by the sweeping prohibitions lurking within—such as proposals that censor discussion on the topic, or worse, throw those who dare to speak behind bars.  

On June 15, 2022, almost a month after the publication of the leaked version of the Dobbs v. Jackson Women’s Health Organization decision overturning Roe, and just days before the final decision was delivered, James Bopp Sr., general counsel to the National Right to Life Committee (NRLC), sent a nationwide memo outlining model legislation for a post-Roe United States. The legislation is designed to criminalize all aspects of abortion care from the moment of conception until birth.

The legislation both seeks to criminalize abortion within a state, and create impediments for a woman to obtain a legal abortion outside her state of residence if she lives in an anti-abortion state. Among the more terrifying aspects of the proposed legislation is the criminalization of any speech in anti-abortion states designed to provide information about the procedure, including transmission “over the telephone, the internet, or any other medium of communication.” The NRLC legislation does not criminalize the speech by the pregnant person—only for those on the other end of the conversation. It also prohibits anyone from providing instructions, encouraging, or in any way communicating in a manner that could facilitate an abortion. 

Addressing practicality first, is the obvious unworkability of criminalizing internet speech in one state while it remains legal in another. Legislative attempts to prohibit speech over the internet have consistently failed to overcome First Amendment barriers. Muting and muzzling speech because the government seeks to control public conversation is unconstitutional; as the Supreme Court has stated, “a bedrock principle underlying the First Amendment … is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  

In First Amendment constitutional parlance, silencing speech or writing before a word is uttered is called a prior restraint—described as “the single most intrusive and dangerous form of government conduct threatening freedom of expression.” The First Amendment was crafted to protect the speaking environment and to allow space for ideas, opinions and information to flow so that all opinions and viewpoints—those promoted by the powerful as well as the weak, the educated as well as the uneducated, the god-fearing as well as those who recognize no god—have the right to speak. 

In fact, the First Amendment does its most important work when it shields words offered by those promoting unpopular sentiments and beliefs. Critical and robust debate is necessary to ensure the proper functioning of democracy. It could be argued that those who want to control information so that it is not subject to the scrutiny of the marketplace of ideas are fearful that their ideas and proposals are not strong enough to survive the assault. 

A bedrock principle underlying the First Amendment … is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

U.S. Supreme Court, Texas v. Johnson

A corollary to the right to speak is the audience’s right to know. Anti-abortion states might defend abortion-related censorship as necessary in protecting the unborn, but censorship of informative speech may actually undermine the safety of both the unborn and the pregnant person. Indeed, previous Supreme Court decisions have invalidated laws that require information be withheld from the public for its own good, and the justices have chastised the government for overstepping. 

The NRLC and its allies have chosen to ignore the right to opine, express and debate enshrined in the protective words of the First Amendment: “Congress shall make no law abridging the freedom of speech.” Those words are also applied to state legislatures through the 14th Amendment. While it is a fool’s game to predict how the current justices sitting on the Supreme Court would rule if the model legislation ever became law, we can hope this time they will respect the precedent of the last 50 years and find the provisions of the model law that affect speech to be unconstitutional. 

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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Lynn Greenky is associate teaching professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment and is the author of the book When Freedom Speaks. You can follow her on Instagram @lynngreenky.