Since the U.S. Supreme Court overruled a half century of precedent supporting the constitutional right to abortion access, numerous states have moved towards making abortion illegal and restricting additional reproductive health services.
In South Carolina, Republican state Senators Richard Cash, Rex F. Rice and Daniel B. Verdin III introduced Senate Bill 1373 seeking to criminalize abortions. The bill would have also made it a crime to “aid, abet, or conspire with someone to procure an abortion,” which includes “providing information to a pregnant woman…by telephone, internet, or any other mode of communication” and “hosting or maintaining an internet website, providing access to an internet website, or providing an internet service purposefully directed to a pregnant woman…that provides information on how to obtain an abortion.”
EFF joined others in opposition to the bill, including Advocates for Youth, Center for Democracy & Technology, Chamber of Progress, EducateUS, LGBT Tech, National Women’s Law Center, PEN America, and SIECUS: Sex Ed for Social Change. Earlier this month, Governor Henry McMaster said the bill’s restrictions on speech are “not going to see the light of day.”
“Everyone has a constitutional right of the First Amendment to say things, to speak,” McMaster said, according to The State (Columbia, SC).
This is good news. But this bill is based on a model from the National Right to Life Coalition, which is looking to introduce it other states. It represents a multi-faceted attack on reproductive rights and freedom of expression which exacerbates the existing challenges that pregnant people face when trying to find reliable information about safe reproductive health care. By making it a felony to discuss abortions online, the model bill’s drafters have sought to ensure that people seeking an abortion are faced with repression everywhere they look – it would become illegal to post information online about abortions, it would become illegal to exchange e-mails or online messages with a pregnant person in South Carolina seeking an abortion, and it would become illegal to undergo the termination itself. The model bill also would probably restrict content that relates to wider reproductive health care, such as miscarriages and other conditions.
Moreover, the bill, should it pass, would make whatever state that passes it the national censors for speech online. This would violate the First Amendment rights of individuals to communicate freely online – and the rights of online platforms to host that speech. Despite Section 230 protections exempting platforms from liability if their users post speech which violates criminal laws, and additional protections against the government telling platforms what they must publish, companies are likely to crack down on speech that could run afoul of the bill. This could lead to restrictions on access to telemedicine counseling services and censorship of direct messages between patients and caregivers. Companies would seek to avoid the strict criminal liability that the bill placed on them for publishing content in the prohibited categories. The bill may also pressure platforms into over-censoring abortion-related content due to fears of litigation or prosecution for hosting the information on their sites.
If any state passes this bill into law, it will have a devastating impact on reproductive rights and freedom of expression across the whole country. By restricting the exchange of abortion-related information online, it is possible that the bill will lead to higher rates of maternal mortality, undesired pregnancies, and sexually transmitted diseases. We applaud South Carolina for rejecting the legislation and urge states not to take up any future bills like it.