Can a state that prohibits most or all abortions block access to online information provided by abortion rights advocates and clinics in states with more permissive abortion laws? After Dobbs v. Jackson Women’s Health Organizationin which the US Supreme Court returned to states the power to regulate access to abortion, that question is no longer theoretical.
The answer ought to be “no.” After all, the First Amendment generally provides robust protection against government attempts to limit speech. However, a review of some of the Supreme Court precedents that will be invoked when this question inevitably appears shows that getting to that answer is more complex than it might first appear.
In 1975, the Supreme Court decided Bigelow v. Virginia, a case that arose from an advertisement published in a Virginia newspaper in 1971 regarding abortion services available in New York. A Virginia statute at the time outlawed the “sale or circulation of any publication” that would “encourage or prompt the procuring of abortion.” Bigelow, who was the managing editor of the newspaper that published the advertisement, was found guilty of violating the statute, and his conviction was subsequently upheld by the Virginia Supreme Court. The Virginia Supreme Court also reconsidered the conviction after the 1973 Roe v. Wade decision, upholding it a second time.
The US Supreme Court reversed the conviction on First Amendment grounds. The Court noted that “the fact that the particular advertisement in [Bigelow’s] newspaper had commercial aspects or reflected the advertiser’s commercial interests did not negate all First Amendment guarantees.” (A year later, the Court more directly addressed the question of commercial speech and the First Amendment, concluding that “commercial speech, like other varieties, is protected.”)
A key consideration in Bigelow was that the advertisement, while unquestionably commercial in nature, also conveyed facts through