The brewing fight to keep abortion information online
The Supreme Court yesterday voted to uphold an abortion ban in Mississippi and struck down Roe vs. Wade, ending abortion access in some states and triggering impending bans in others. The ruling won’t end abortion in America, but in many places it will move the procedure underground and, based on recent history, online.
Understandably, abortion advocates have focused on surveillance issues in the aftermath of the ruling, concerned that states are using online records for criminal prosecutions. But there’s also a fight brewing over how and where advocates can share information about abortion online. If a procedure is illegal, then states could claim that the content enabling that procedure is also illegal, raising tricky questions for platforms and activists.
Abortion bans in states like Texas already have provisions to penalize people seen as “aiding and abetting” the procedure, and some anti-abortion activists are pushing to define that as simply describing how to manage an abortion yourself. As The call noted earlier this week, the National Right to Life Committee (NRLC) proposed model legislation that would prohibit offering “instructions by telephone, internet or any other means of communication” or “hosting or maintaining a website, or provide an Internet service, that encourages or facilitates efforts to obtain an illegal abortion.
The language appears to be aimed at sites like Plan C, which offers detailed information on obtaining misoprostol and mifepristone for self-directed abortion. Many media outlets, including Edge sister site The cup, have also published detailed information on the subject. Broad terms like “hosting” would apparently even let states sue internet infrastructure providers that support sites like Plan C or the social networks they use to distribute information.
Civil liberties advocates say that would be unconstitutional. “This type of legislation raises serious First Amendment concerns,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “We intend to consider challenging any legislation that uses today’s Supreme Court ruling as justification for further limitations on free speech or new forms of surveillance.”
Motivated prosecutors can always try to punish media outlets for sharing information, arguing that the material is specifically intended to help others break the law, and embroil them in costly and protracted court cases, even if they end up winning. . “Explaining what abortion is, where you can get one, advocating for a person’s right or ability to have an abortion – all of these things are general truthful information that cannot be prosecuted without violating the first amendment,” ACLU attorney Jennifer Granick said. “The risk is that prosecutors take these private conversations where people exchange information and try to present them as criminal encounters. And it will be something that we will probably end up having to fight.
Activists and healthcare providers have incentives to fight these battles, but the digital platforms they use might not. Opponents of legal abortion could threaten any company involved in hosting speech with lawsuits if it allows abortion-related communications. Potential targets range from social networks like Facebook, where it’s easy to connect with people seeking abortions, to infrastructure providers like content delivery networks (CDNs), which provide essential logistical support to independent websites. .
Currently, platforms have a simple response to threats: Section 230 of the Communications Decency Act. Section 230 prevents apps and websites from being considered the “publisher or speaker” of user-generated content, shielding them from liability for its hosting. Unlike a First Amendment defence, there is no need to fight over whether the content in question is illegal, reducing the legal burden of prosecution. “The thing about Section 230 is that you don’t have to show that it’s First Amendment protected speech, which can sometimes take a very, very long time in a dispute,” says Granick. There is an exception for behaviors that violate federal criminal law, but not violations of state laws like current abortion bans.
Still, Section 230 has become increasingly unpopular among Republicans and Democrats. Federal bills like the EARN IT Act and SAFE TECH Act have proposed to reduce its protections, while Texas and Florida have passed laws on the principle that Section 230 should not prevent states from implementing their own content moderation laws. In 2018, then-President Donald Trump signed FOSTA-SESTA, which removed protections for material related to sex work, with the support of both parties.
Critics of Section 230 have cited real cases of sites (usually not the typical “Big Tech” targets) using it to avoid liability for encouraging non-consensual pornography or defamatory lies. However, many proposals to address this problem contain broad exclusions that could be exploited to make learning about abortion more difficult – even if that is not the goal.
Research suggests that FOSTA-SESTA has resulted in a massive deplatforming of online sex workers, whether or not they directly post illegal content, and the ripple effects have made it more difficult to operate services like sex education on line. Further weakening of the law could also have similar chilling effects on abortion news, with sites deciding to err on the side of caution rather than risk legal liability.
“Sometimes people say, well, what’s the problem?” says Granick of the section 230 exclusions. For example, “If we have an exception for federal crimes, why shouldn’t we also have an exception to allow liability for state crimes? And it’s like Exhibit A where we don’t want to open up liability to the criminal provisions of the state.
Fight for the Future director Evan Greer announces the death of roe deer adds dangerous side effects to current proposals. “Even well-meaning changes to Section 230, such as those proposed in the SAFE TECH Act or the Justice Against Malicious Algorithms Act, could trigger a wave of lawsuits from anti-abortion activists (who are already lawyers, litigious and highly motivated to get abortion access content erased from the internet),” Greer says Companies could respond by downplaying their risks, which could range from crowdfunding sites banning funds from abortion access to online social spaces shutting down people trying to arrange travel and logistics for interstate abortions.
“Weakening Article 230 would be a disaster in a post-roe deer environment,” continues Greer.
There are good reasons to be wary of organizing abortion access on major platforms, such as leaving a data trail that could be used by police in prosecutions. But overzealous bans would only make it harder to find health information. For lawmakers who have supported maintaining access to abortion, this is a risk that any future reform of Section 230 will have to take into account.