The brewing fight to keep abortion info online

Illustration by William Joel

The Supreme Court voted yesterday to uphold Mississippi's abortion ban and to overturn the Wade decision. Although the decision won't end abortion in America, it will move the procedure underground and online.

The immediate aftermath of the ruling has abortion advocates concerned about the use of online records for criminal prosecutions. There is a fight going on over where abortion information will be shared. If a procedure is illegal, then states could claim that the procedure is illegal as well.

Some anti-abortion activists want to define how to self-manage an abortion as simply describing how to aid and abet the procedure. The National Right to Life Committee has proposed model legislation that would prohibit offering instruction over the phone, the internet, or any other medium of communication.

The language seems to be aimed at websites like Plan C, which offer detailed information about abortion drugs. Information about the subject has been published by many news outlets. Broad terms like "hosting" would allow states to go after internet infrastructure providers that support sites like Plan C.

This would be unconstitutional according to civil liberties advocates. The Knight First Amendment Institute executive director said that the legislation raised serious First Amendment concerns. We intend to challenge any legislation that uses the Supreme Court decision to justify new limits on protected speech.

Motivated prosecutors may still try to punish outlets that share information, arguing that the material is meant to help others break the law, and drag them into expensive and lengthy legal cases even if they ultimately prevail. Explaining what abortion is, where you can get one, advocating for a person's right or ability to get an abortion are all general truthful information that cannot be prosecuted without violating the First Amendment, according to the American Civil Liberties Union. The risk is that prosecutors will take those private conversations and try to make them look like criminal encounters. We are going to probably have to fight that one.

Activists and health care providers have an incentive to fight, but the digital platforms they use may not. If a company allows abortion-related communications, opponents of legal abortion could threaten them. Potential targets include social networks such as Facebook, where it is easy to connect with people seeking abortions, as well as infrastructure providers such as content delivery networks, which provide critical logistical support for independent websites.

The Communications Decency Act gives platforms an easy answer to threats. Section 230 protects websites and apps from liability for hosting user-generated content. The legal burden of lawsuits is reduced by the fact that it doesn't require fighting over whether the content is legal. Section 230 doesn't require you to prove that it's First Amendment protected speech, which can take a long time in litigation There is an exception for conduct that violates federal law, but not state law.

Section 230 is no longer popular among Republicans and Democrats. Texas and Florida have passed laws stating that Section 230 shouldn't stop states from implementing their own content moderation laws, despite the fact that federal bills have proposed chipping away at its protections. There were protections for sex work that were removed with the help of both parties.

Section 230 has been used to avoid responsibility for encouraging nonconsensual pornography or defamatory lies. Even if the goal is not to make learning about abortion harder, there are carve outs that could be used.

According to research, FOsta-SESTA led to a mass deplatforming of sex workers online, whether or not they were directly posting illegal content, and the ripple effects made it harder to operate online sex education. If the law is weakened it could have the same chilling effect on abortion information as it did on the law.

Sometimes people ask what the problem is. If we have an exception for federal crimes, why shouldn't we have an exception for state crimes as well? This is an example of why we don't want to open up liability to the state.

Evan Greer is the director of Fight for the Future. The SAFE TECH Act and Justice Against Malicious Algorithms Act could unleash a wave of lawsuits from anti-abortion activists, who are already lawyered up, litigious, and highly motivated to get content about abortion access. Companies could respond by reducing their risk, which could include anything from banning abortion access funds to shutting down people who try to arrange travel and logistics for cross state abortions.

Section 230 is a disaster in a post- Roe environment.

Leaving a data trail that could be used in prosecutions is one of the reasons to be wary of organizing abortion access on major platforms. It would be more difficult to find health information if there were too many bans. Preserving access to abortion is a risk that any Section 230 reform will have to contend with.