South Carolina bill bans websites that explain how to get an abortion


Shortly after the Supreme Court ruling that struck down abortion rights in June, South Carolina state senators introduced legislation prohibiting “aiding, abetting, or conspiring with anyone” to get an abortion.

The bill aims to block more than abortion: provisions would prohibit providing information over the Internet or by telephone on how to obtain an abortion. It would also be illegal to host a website or “[provide] an Internet service” containing information “reasonably likely to be used for an abortion” and intended for pregnant women in the state.

Lawyers say the proposal is likely a harbinger of other state measures, which may restrict communication and speech as they seek to limit abortion. The June proposal, S. 1373, is inspired by a plan created by the National Right to Life Committee (NRLC), an anti-abortion group, and designed to be replicated by lawmakers across the country.

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Like the fall of Roe vs. Wade triggers a flood of new legislation, an adjacent battleground emerges over the future of internet freedoms and privacy in states across the country – one, experts say, that could have a crippling impact on Speech protected by the First Amendment.

“These will not be unique cases,” said Michele Goodwin, director of the Center for Biotechnology and Global Health Policy at the University of California at Irvine Law School. “These will be laws that will spread like wildfire in states that have shown themselves hostile to abortion.”

Goodwin called the South Carolina bill “unconstitutional.” But she warned that it is unclear how the courts might react after “turning a blind eye” to anti-abortion laws even before the Supreme Court overturned it. Deer.

Legislative sessions in many conservative states ended before the Supreme Court’s ruling and will not resume until next year, making South Carolina’s bill an anomaly. But some tech lobbyists say the industry needs to be proactive and ready to fight bills with communication restrictions that can have complicated ramifications for businesses.

“If technology is not part of this debate, services will be held accountable for providing basic reproductive health care to women,” said Adam Kovacevich, founder and CEO of Chamber of Progress, which receives funding from companies such as Google and Facebook.

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Tech companies could soon navigate a patchwork of state laws, caught in the middle of a political tussle between red states and blue states. Democrats are already considering new data privacy proposals to protect reproductive health data and other digital leads that could be used to prosecute people seeking abortions. Meanwhile, Republican states could attempt to retain and collect that same data, which has been used as key evidence in cases against pregnant women.

Eric Goldman, a professor at Santa Clara University School of Law, said the First Amendment and Section 230, a bill that shields internet service providers and technology companies from liability for posts, photos, and videos that people share on their sites provide a strong defense in many cases of websites and providers being sued for hosting abortion access information.

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But individuals could be held liable for aiding and abetting people to access criminal proceedings if they send messages about how to obtain an abortion or break the law.

For the NRLC, which drafted the model legislation, limiting communication is a key part of the strategy to aggressively enforce laws restricting abortion. “The entire criminal enterprise must be addressed to effectively prevent criminal activity,” Jim Bopp, the group’s general counsel, wrote in a July 4 memo, likening the group’s efforts to fighting organized crime.

In an interview with The Washington Post, Bopp said the group has refined its plan for states since the South Carolina bill was filed last month. The restrictions on websites and Internet hosts in the wording of the July model bill would only apply when the information is likely to be used “for an unlawful abortion in this state”, he said. , not for abortions in general, as the South Carolina bill states.

The group “tried to be very careful in checking this so it didn’t infringe on First Amendment rights,” he added. He said the provision was intended to limit the trafficking of abortion-inducing drugs, which he compared throughout the interview to the trafficking of fentanyl.

Abortion is now prohibited in these states. See where the laws have changed.

Still, there is great uncertainty about how the courts would interpret these bills, which could lead companies and websites to suppress information about abortions for fear of lawsuits.

“Legal ambiguity works in favor of regulators,” Goldman said. “They can suppress a lot of constitutionally protected speech just for fear of being held accountable.”

Democrats should respond to conservative states with their own regulatory efforts, largely focused on protecting sensitive data. California State Assemblywoman Mia Bonta introduced legislation earlier this year that would protect people from requests by law enforcement in other states to release personally identifiable information. seeking an abortion.

A staffer in Bonta’s office said she introduced the legislation amid fears the Supreme Court could overturn deer. Planned Parenthood Affiliates of California approached her with the concept of the legislation. The bill will have a hearing in August, and Bonta staff are working on amendments to strengthen the legislation following the Dobbs v. Jackson Women’s Health Organization decision.

“Just because the Supreme Court has decided to deprive us of the fundamental right to choose [to do] with our bodies, does not mean California will step back and allow others to use our systems to obtain information to harm people exercising a human right here in California,” Bonta said.

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Democrats in Congress also introduced the “My Body, My Data Act,” which would create new privacy protections for reproductive health data. The bill is unlikely to become law in a tightly divided Congress, but Rep. Sara Jacobs (D-California), the architect of the legislation, previously told the Post that she wants states to replicate the bill. of law.

Privacy and tech advocacy groups are trying to prepare for the post-Dobbs battles. The Center for Democracy and Technology on Tuesday announced a new working group focused on protecting reproductive health information, which brought together academics, civil rights groups and privacy organizations.

The Electronic Frontier Foundation, a privacy advocacy group, has expressed support for California’s proposed privacy law and is currently reviewing South Carolina’s legislation. Hayley Tsukayama, senior legislative activist at the EFF and former Post reporter, said the South Carolina bill had “serious problems”.

She anticipates that tech companies and their trade associations will step up lobbying efforts at the state level, especially early next year when many states resume their legislative timelines.

“For tech companies and for people interested in digital rights, it’s going to be a wild ride in the next few years,” she said.


A previous version of this story had misspelled the name of Michele Goodwin, director of the Center for Biotechnology and Global Health Policy at the University of California at Irvine Law School.

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