ABORTION AND THE FIRST AMENDMENT

Here’s a really interesting article from The Atlantic that raises the interesting question about whether abortion laws can restrict providing information about abortion availability consistent with the First Amendment.  Consider a bill recently introduced in South Carolina, that would make it illegal to “provid[e] 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.”

Make sure you read that carefully.  This isn’t about prohibiting the act of providing re receiving an abortion – it’s about simply providing information about it.  So, presumably, a person who tells someone in South Carolina what states allow abortions may be charged under this statute.  A novel that discusses how a character self-induced an abortion may be criminally liable. The list of possible violations seems endless.

If this seems at odds with the First Amendment guarantee of free speech that’s because it is.  We have consistently allowed speakers to speak their minds, even if doing so could allow someone to commit a crime with the information.  Any number of novels and plays illustrate “the perfect crime.”  The authors aren’t charged with aiding and abetting if some reader tries it out in real life.

The First Amendment, with some limited exceptions, doesn’t punish someone for informing another person about a subject; even one as controversial as abortion.  Post Dobbs states can restrict abortion. But that’s not license to trample on the First Amendment.