The South Carolina State Senate is considering a bill that would fundamentally ban abortions, with no exceptions other than abortions necessary “designed or intended to prevent the death of a pregnant woman” (although even that is uncertain , given the phrase that “The provisions of this section shall not be construed as authorizing the intentional killing of an unborn child”). The bill would not prohibit adult women from traveling to another state to have an abortion, although it would ban “transportation[ing] a pregnant minor residing in this state to another state to have an abortion. “.
The arguments for and against banning abortion are obvious, so I won’t dwell on them. (I object to such bans, but have little useful to add about them.) Instead, I thought I was pointing out something that is more in my area of expertise and that d Others Might Be Missed: The Law’s Prohibition on “Knowingly or Intentionally Aiding[ing or] a bet[ting]”an abortion” includes, but is not limited to knowingly and intentionally,”
(1) provide information to a pregnant woman, or a person seeking information on behalf of a pregnant woman, by telephone, Internet, or other mode of communication regarding self-administered abortions or ways to obtain an abortion , knowing that the information will be used, or is reasonably likely to be used, for an abortion; [or]
(2) hosting or maintaining a website, providing access to a website or providing an internet service for the purpose of a pregnant woman who resides in this state and who provides information on how to obtain an abortion, knowing that this information will be used, or is reasonably likely to be used for an abortion.
Let’s say a news site writes a story, “North Carolina abortion clinic near SC border targeted for protests” and tags the clinic. (Assume the clinic is legal in North Carolina.) It seems to me that the elements of the crime would be met:
- The story provides “information…regarding…ways to get an abortion” or “information about how to get an abortion” as it provides information about a clinic that could easily perform abortions for women of Caroline from the south.
- Surely the author must know that some readers will use this information to find out where to get an abortion, or at least are reasonably likely to use it: it may be only one in a thousand readers, with the remaining readers simply reading the ‘story. for the information he provides against the protest, but it could still be dozens or hundreds of women. And indeed, the story might, in the normal course of things, mention things about abortion providers that paint them in a particularly good light (“Dr. Jane Schmane, trained at Harvard Medical School, who practices at clinic, said….”), which would end up attracting patients to that particular clinic.
- The author’s employer hosts or operates a website containing the story.
- The story can very well be considered to be provided “for a pregnant woman” or “deliberately intended for a pregnant woman”, because pregnant women will surely read it, and of course the author wants pregnant women (alongside other women) read it. Certainly, it does not seem to be directed towards a identified pregnant womanas might be an e-mail addressed to a particular person – but paragraph (2) obviously covers sites published worldwide, since a “website” would basically never be deliberately directed to a particular identified reader.
- The news site may well be headquartered in South Carolina, or have a branch or office in South Carolina, and would therefore be subject to the jurisdiction of South Carolina.
- The law does not seem to be limited to information on abortions that would be performed (illegally) in South Carolina. It could perhaps be argued that the law as a whole does not prohibit abortions performed out of state, and therefore the aiding and abetting provision applies only to aiding and abetting abortions in the state. But the text in this section appears to cover in-state reporting of information about abortions in general, not just about in-state abortions. (Also, the law would clearly cover articles written about companies that ship abortion pills to South Carolina, if the law mentions the name of the company or gives enough information that a quick Google search can identify the company.)
This strikes me as quite clearly unconstitutional, as it does not fit within the narrow scope Brandenburg vs. Ohio First Amendment exception for willfully inciting imminent and likely unlawful conduct, both because (1) the conduct the speech might facilitate would be legal, since it would be a legal abortion performed in North Carolina, and because (2) the bill is not limited to publications written for the specific purpose of promoting abortion. But such speech appears to be covered by the bill.
I should note that a law could probably prohibit providing specific information to a particular woman about where she could get an illegal abortion in the state. This would likely fit within the “speech integral to criminal conduct” exception, by analogy to the solicitation of a specific crime (see United States vs. Williams). Just as telling a friend where she can illegally buy drugs is aiding and abetting the illegal sale of drugs, telling a friend where she can illegally get an abortion would be punishable complicity. But this bill seems to me to go much further.