“I think over the next five years and years we’ll see how this plays out with the interstate law,” said Kevin Grillot, committee chair of March for Life Chicago, noting that advertising illegal activities could be territory for dispute.
Legal experts agree that fights are likely: The Supreme Court case over abortion has now been decided, but other battles over the procedure are still lurking — including over advertising.
Under the legislation proposed by the National Right to Life Committee, Google’s web hosting service could be in trouble, said Mary Ziegler, a law professor at Florida State University. Likewise, Facebook may be liable for user-generated content that promotes abortion and targets people in states where these services are illegal.
While these platforms continue to host abortion-related ads, the abortion rights advocacy group Plan C said it’s hard to get ads for abortion services approved and it’s getting harder.
The biggest concern for digital ad platforms in the near term are laws, similar to those proposed by the National Right to Life Committee, in Oklahoma and Texas, that allow civil lawsuits against anyone who helps someone else get an abortion.
Both states allow residents to sue parties that aid or encourage an abortion with a minimum of $10,000 in damages. While the laws specify that paying for an abortion qualifies as complicity, legal experts say the laws could extend to advertising.
Advertiser Defense
Abortion advocates say advertising the procedure is protected by the right to free speech.
“Advocating a person’s right to have an abortion, educating a person about how to legally have an abortion, encouraging a person to make their own reproductive health choices are all protected by the First Amendment,” said Vera Eidelman, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project.
There is also a Supreme Court precedent protecting advertisers. Prior to the Roe v. Wade decision, some states explicitly prohibit the advertising of abortion services. In 1971, Jeffrey Cole Bigelow, editor for an underground magazine in Charlottesville called Virginia Weekly, placed an ad for an abortion clinic in New York, despite a Virginia law making it a felony to “encourage or incite to obtain an abortion.” Bigelow was arrested and convicted, but his case eventually made its way to the Supreme Court, which ruled in his favor.
In the majority view, then-judge Harry Blackmun wrote that the ad did not promote a simple commercial transaction. “It contains factual material of obvious public interest” and was entitled to protection by the First Amendment, he wrote. However, the ruling came at a time when the court was sympathetic to abortion rights, after having them indicted two years earlier roe decision. The current court may think otherwise.
Eidelman believes that section 230 of the Communications Decency Act of 1996, which states that websites cannot be held responsible for material posted on them by users, is also likely to protect Internet companies. But she acknowledges some legal uncertainty.
Containers of the medication used to terminate an early pregnancy are on a table at a Planned Parenthood clinic in Fairview Heights, Illinois, Oct. 29, 2021. | Jeff Robertson/AP Photos
Consequences for tech
For groups like the National Right to Life Committee, the uncertainty helps the cause.
Ziegler predicts that laws penalizing abortion information sharing will have a chilling effect on the digital advertising industry, potentially causing platforms to voluntarily suppress abortion ads and abortion content in states where it is not legal. It can already happen. Last month, Vice reported that Instagram and Facebook removed posts from users who offered to share abortion pills. Meta, their parent company, said the messages violated its regulated goods policy.
Facebook and Google allow abortion service ads on their ad networks, but abortion advocacy groups said the platforms’ approval process is opaque.
“They have control over who we reach and they have control over how we say things.”
Dimitratou said she struggled with ads that used phrases like “terminating a pregnancy” or simple words like “pills.”
To advertise for keywords related to the abortion search, advertisers must obtain certification from Google and demonstrate that they are not involved in fraud. To block ads for fraudulent products, Google screens ads before showing them on its site, using software and staff to highlight seemingly harmless words.
As an advocacy group, Plan C doesn’t always qualify for the kind of certifications abortion providers can get and hasn’t applied for them.
Several abortion clinics said they don’t have the same difficulty getting ads approved by the internet companies. They also do not advertise in states where abortion is illegal.
Dimitratou said Facebook often dismisses Plan C’s ads for “promoting the sale of unsafe substances,” the decision of which is at the discretion of parent company Meta. Like Google, Meta has special approval processes to display ads about abortion and drugs. However, only online pharmacies, telehealth providers and pharmaceutical manufacturers can apply.
Google recognizes that its advertising policies may change. It blocks abortion-related ads in 72 countries where it is illegal.
Michael Aciman, a spokesperson for Google, said it is “still evaluating the court decision and laws across the country and will continue to look for new developments.”