Michael Ejercito
2022-07-24 16:27:02 UTC
http://jonathanturley.org/2022/07/24/south-carolina-moves-to-criminalize-sharing-abortion-information/
South Carolina Legislators Move to Criminalize Sharing Abortion Information
The South Carolina legislature is moving to enact a new law with deeply
troubling free speech implications. Following the Jackson Women’s Health
Organization v. Dobbs decision overturning Roe, the legislators have
sought to criminalize any effort to ”aid, abet or conspire with someone”
to obtain an abortion. That apparently includes sharing information over
the Internet or other communication systems. In my view, the law
violates the First Amendment and should be scuttled by the legislature.
Otherwise, it would likely be struck down by the courts.
The language below is reminiscent of laws making it illegal to share
information on committing suicide. I have long objected to prosecutions
for sharing such information as inimical to free speech.
The free speech concerns are even greater with regard to the South
Carolina law. Abortion is a protected right in many states. Indeed, many
continue to believe that this is a protected right under the Constitution.
The law criminalizes sharing information on “the means to obtain an
abortion, knowing that the information will be used, or is reasonably
likely to be used, for an abortion.” It is an unconstitutionally broad
provision. Even the federal government and members of Congress would be
in violation since it is actively assisting those seeking abortion services.
Of course, it is easy to introduce legislation but it is important to
flag such excessive laws before they are replicated in other states.
Indeed, the provision was reportedly based on model legislation drafted
by the National Right to Life Committee (NRLC). Jim Bopp, the NRLC’s
general counsel, reportedly wrote a memo noting that the model
legislation seeks to use a type of organized crime model to deal with
such activities: “The whole criminal enterprise needs to be dealt with
to effectively prevent criminal activity.”
The analogy to organized crime will not sustain such a law. As a noted
above, this is a lawful procedure in many states and the criminalized
information would include core political and religious speech under the
First Amendment.
The law also makes it unlawful for a person “to knowingly or
intentionally receive any proceeds directly or indirectly derived from a
pattern of prohibited abortion activity.” That could include a wide
array of religious, journalistic, and public interest organizations.
Presumably, tech companies themselves would be protected under Section
230 of the Communication Decency Act (47 U.S.C. § 230). However, it
would make it a crime for anyone, including journalists, public interest
groups, politicians, and advocates from sharing basis information on
abortion services for women in states like South Carolina.
Pro-life states need to be careful not to replicate the record of
anti-gun states like New York, which have passed a series of
ill-considered laws that resulted in major court losses. There is a
tendency in such moments to follow Oscar Wilde’s rule that the only way
to be rid of temptation is to yield to it. However, overreach can
result in creating new and limiting precedent. The pro-life community
needs to switch from years of being on the offensive to being on the
defense. It needs now to hold the ground gained in Dobbs while
pro-choice advocates must now shift to the offense in litigation after
years of defending Roe.
South Carolina has moved to lower its ban from the 20th to the 6th week
of a pregnancy.
Here is the critical language:
Section 44-41-860. (A) It is unlawful to knowingly or
intentionally aid, abet, or conspire with another person to violate the
provisions contained in Section 44-41-830. A person who violates this
section is guilty of a felony and is subject to the same penalties as
provided in Section 44-41-830.
(B) The prohibition against aiding and abetting a violation of
Section 44-41-830 includes, but is not limited to knowingly and
intentionally:
(1) providing information to a pregnant woman, or someone
seeking information on behalf of a pregnant woman, by telephone,
internet, or any other mode of communication regarding self-administered
abortions or the means to obtain an abortion, knowing that the
information will be used, or is reasonably likely to be used, for an
abortion;
(2) hosting or maintaining an internet website, providing
access to an internet website, or providing an internet service
purposefully directed to a pregnant woman who is a resident of this
State that provides information on how to obtain an abortion, knowing
that the information will be used, or is reasonably likely to be used
for an abortion;
(3) offering or providing abortion doula services, knowing
that the services will be used, or are reasonably likely to be used for
an abortion;
(4) providing a referral to an abortion provider, knowing
that the referral will result, or is reasonably likely to result, in an
abortion; and
(5) providing a referral to an abortion provider and
receiving monetary remuneration, or other compensation, from an abortion
provider for the referral.
South Carolina Legislators Move to Criminalize Sharing Abortion Information
The South Carolina legislature is moving to enact a new law with deeply
troubling free speech implications. Following the Jackson Women’s Health
Organization v. Dobbs decision overturning Roe, the legislators have
sought to criminalize any effort to ”aid, abet or conspire with someone”
to obtain an abortion. That apparently includes sharing information over
the Internet or other communication systems. In my view, the law
violates the First Amendment and should be scuttled by the legislature.
Otherwise, it would likely be struck down by the courts.
The language below is reminiscent of laws making it illegal to share
information on committing suicide. I have long objected to prosecutions
for sharing such information as inimical to free speech.
The free speech concerns are even greater with regard to the South
Carolina law. Abortion is a protected right in many states. Indeed, many
continue to believe that this is a protected right under the Constitution.
The law criminalizes sharing information on “the means to obtain an
abortion, knowing that the information will be used, or is reasonably
likely to be used, for an abortion.” It is an unconstitutionally broad
provision. Even the federal government and members of Congress would be
in violation since it is actively assisting those seeking abortion services.
Of course, it is easy to introduce legislation but it is important to
flag such excessive laws before they are replicated in other states.
Indeed, the provision was reportedly based on model legislation drafted
by the National Right to Life Committee (NRLC). Jim Bopp, the NRLC’s
general counsel, reportedly wrote a memo noting that the model
legislation seeks to use a type of organized crime model to deal with
such activities: “The whole criminal enterprise needs to be dealt with
to effectively prevent criminal activity.”
The analogy to organized crime will not sustain such a law. As a noted
above, this is a lawful procedure in many states and the criminalized
information would include core political and religious speech under the
First Amendment.
The law also makes it unlawful for a person “to knowingly or
intentionally receive any proceeds directly or indirectly derived from a
pattern of prohibited abortion activity.” That could include a wide
array of religious, journalistic, and public interest organizations.
Presumably, tech companies themselves would be protected under Section
230 of the Communication Decency Act (47 U.S.C. § 230). However, it
would make it a crime for anyone, including journalists, public interest
groups, politicians, and advocates from sharing basis information on
abortion services for women in states like South Carolina.
Pro-life states need to be careful not to replicate the record of
anti-gun states like New York, which have passed a series of
ill-considered laws that resulted in major court losses. There is a
tendency in such moments to follow Oscar Wilde’s rule that the only way
to be rid of temptation is to yield to it. However, overreach can
result in creating new and limiting precedent. The pro-life community
needs to switch from years of being on the offensive to being on the
defense. It needs now to hold the ground gained in Dobbs while
pro-choice advocates must now shift to the offense in litigation after
years of defending Roe.
South Carolina has moved to lower its ban from the 20th to the 6th week
of a pregnancy.
Here is the critical language:
Section 44-41-860. (A) It is unlawful to knowingly or
intentionally aid, abet, or conspire with another person to violate the
provisions contained in Section 44-41-830. A person who violates this
section is guilty of a felony and is subject to the same penalties as
provided in Section 44-41-830.
(B) The prohibition against aiding and abetting a violation of
Section 44-41-830 includes, but is not limited to knowingly and
intentionally:
(1) providing information to a pregnant woman, or someone
seeking information on behalf of a pregnant woman, by telephone,
internet, or any other mode of communication regarding self-administered
abortions or the means to obtain an abortion, knowing that the
information will be used, or is reasonably likely to be used, for an
abortion;
(2) hosting or maintaining an internet website, providing
access to an internet website, or providing an internet service
purposefully directed to a pregnant woman who is a resident of this
State that provides information on how to obtain an abortion, knowing
that the information will be used, or is reasonably likely to be used
for an abortion;
(3) offering or providing abortion doula services, knowing
that the services will be used, or are reasonably likely to be used for
an abortion;
(4) providing a referral to an abortion provider, knowing
that the referral will result, or is reasonably likely to result, in an
abortion; and
(5) providing a referral to an abortion provider and
receiving monetary remuneration, or other compensation, from an abortion
provider for the referral.
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