I grew up thinking that book burning was a sign of totalitarianism. Regulating the body is one thing — though barbaric, corporeal punishment doesn’t touch the final threshold, the sanctuary that is our mind. To do so was long thought to be as un-American and heave-inducing as apple poutine. No more. Censorship’s normalization is being codified into law. A big wave of indoctrination and compelling thought has been the recent push against Critical Race Theory. The second is assault on free speech and thought is coming — it’s abortion.
A bill under consideration in South Carolina seeks to restrict what its residents will be able to read online about abortion. As a consequence, it also threatens to restrict what all of us can say
The South Carolina bill comes from Republican state Senators Richard Cash, Rex F. Rice and Daniel B. Verdin III, S. 1373, the Equal Protection at Conception—No Exceptions—Act, makes abortions illegal in South Carolina, and also makes it a crime to, broadly defined, “aid, abet, or conspire” with someone to procure an abortion. It mirrors a National Right to Life Committee (NRLC) blueprint bill, which was meant to be copied by state lawmakers nationwide. The South Carolina bill is part of a new national blitz by antiabortion activists to alter not only access to abortion, but whether and how we can even discuss it.
The take I’d like to have is that the bill is merely unconstitutionally vague. The broad umbrella of behavior that could fall under aiding and abetting could be sent back for some linguistic chiseling and come out more specific. But this is not a failure, it’s a feature.
There are glaring free-speech issues in the bill. First, it allows the prosecution of any person who provides information regarding self-administered abortions or the means to obtain an abortion to a “pregnant woman” or someone acting on “behalf of a pregnant woman.” If you have a phone conversation, exchange e-mails or have an online chat with a pregnant person in South Carolina about seeking an abortion, you violate the bill. Even posting information that they’re “reasonably likely” to access—for example, through a public post—puts you at risk.
Any person: doctors, teachers, career women, 10-year-olds. Any information: where to go, who to see, what to take, how to do so safely, etc. This is how to create a culture of fear. Especially when you factor in that this law will likely be implicated in conversations about miscarriages and people who are sick and also happen to be pregnant; this will serve to make people afraid. Our sex ed is bad enough without the worry that an incognito Google search of “how to take care of my miscarriage” may lead to a cop knocking on your door because they think it was a proxy search to get directions on how to abort. This is before you factor in that the bill has long-arm statute components.
Second, the bill prohibits hosting or maintaining a Web site, providing access to a Web site, or providing an Internet service that provides information on how to obtain an abortion, if the site is “purposefully directed to a pregnant woman” who lives in South Carolina. That could affect companies that host Web sites that share information describing the availability of legal abortion services in other states or support sites intended for pregnant people living in states that ban abortions.
That means that if someone who wrote an article simply stating that “Misoprostol (a medicine commonly used to induce abortions) is the medication’s clinical name, but it is sold internationally under many different trade names, such as Cytotec, Misoclear, Misotac, Kontrac, and Isovent. You can find a full list of names here: www.womenonwaves.org,” they could be in danger of violating the act because they shared information that “aided and abetted.” Say you’re killing the First Amendment without saying you’re killing the First Amendment. Imagine the outrage if (and when) California drops a copycat bill that makes it illegal to aid and abet the purchase of firearms for underaged Californians. The NRA and JR-15 people would literally be — I have no shame here — up in arms about how this infringes on the Second Amendment. The chilling effects are obvious.
The bill’s somewhat hand-wavy, dismissive provision saying it shouldn’t be construed to conflict with the First Amendment doesn’t actually prevent it from doing so. This disclaimer doesn’t stop people in and outside of South Carolina from having to carefully consider what online information they post about legal abortion services in fear of how a prosecutor in the state may view that information. Even if someone’s post doesn’t specifically target South Carolinians, the uncertainty over whether someone in that state will read or hear it, and the threat of legal liability, will discourage many people from writing. If people are afraid of speaking up, they don’t.
When Roe was overturned, people realized that a generation of grandmothers and daughters had a right to bodily autonomy that their children do not. At this rate, we won’t even be able to speak about that loss.
A Proposed Antiabortion Law Infringes on Free Speech [Scientific American]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at email@example.com and by tweet at @WritesForRent.