Rachel Mendelson/Insider
A South Carolina bill would make assisting people getting abortions online or over the phone a felony.
Tech law scholars say laws like these violate First Amendment freedoms.
However, other states could soon propose measures to curtail out-of-state abortions, scholars say.
As abortion restrictions tighten in certain states across the US, legislators are looking at ways to further prosecute abortion providers and prevent more abortions in a post-Roe world.
In South Carolina, legislators have proposed a bill that would restrict phone calls, emails, text messages, and websites that share information on how to get abortions.
If SB 1373 were to become a law, providing information that could help women get an abortion by “telephone, internet, or any other mode of communication” or hosting or maintaining websites that could help women access abortions would be a felony, punishable by 2 to 5 years in prison and/or fines up to $5,000.
Other states could soon follow with similar laws. And even if courts eventually strike down the bill for violating the First Amendment, it may take months before they do and could affect the health of many women seeking abortions, scholars and advocates say.
“We are very worried that we are going to see a number of emerging state laws, trying to limit the ability of people to get reliable, accurate information about how to access reproductive care,” Alexandra Givens, President of the Center for Democracy and Technology, told Insider.
Earlier this month, the CDT put together a task force to address access to information and user privacy in the wake of the Dobbs v. Jackson decision, which overturned Roe V. Wade.
Givens said the law is “plainly unconstitutional” and the breadth of the bill is “startling.”
“This law as written could bring in speech by journalists or politicians or public interest groups who are trying to help people understand their rights and the resources available to them,” Givens said.
The legislation is backed by ‘religious zealots’
South Carolina’s bill resembles model legislation by the National Right to Life Committee, one of the most established anti-abortion organizations in the US. The NRLC proposed the model legislation as a way to create an “effective enforcement regime” that would prevent healthcare providers from offering abortion services, according to a memo by Jim Bopp, counsel for the NRLC.
The NRLC did not immediately respond to Insider’s request for comment.
The “abortion industry” will “exploit existing State laws on telehealth and the proximity of States with less protective laws to circumvent pro-life laws in a particular State,” Bopp wrote in June. Bopp did not immediately respond to Insider’s request for comment.
The bill, currently in the Medical Affairs committee of the South Carolina State Senate, was sponsored by three Republicans: Sen. Richard Cash, Sen. Rex Rice, and Sen. Daniel Verdin. The co-sponsors of the bill did not immediately respond to questions sent by Insider.
In a statement to Insider, Democratic State Sen. Mia McLeod, who sits on the South Carolina Senate Medical Affairs Committee with Cash, Rice, and Verdin, said the bill would likely pass in the state and would strip women of their “God-given rights and freedoms.”
“As a woman and sexual assault survivor, I am deeply concerned about its impact, as well as its far-reaching implications,” McLeod wrote. “There is nothing Biblical, Scriptural, or Constitutional about what these religious zealots are doing.”
The bill could have a ‘chilling effect’ on people’s speech
Michele Goodwin, director of the Center for Biotechnology and Global Health Policy, told Insider that “wide-reaching” laws meant to prevent abortion access were “unfortunate, but not surprising” in the wake of Roe.
Goodwin cited the history of laws in this country that have restricted First Amendment rights and rights to travel for Black people under slavery and during Jim Crow. “Our mistake would be seeing this as original, rather than seeing it as pulling from a prior playbook,” she said.
Goodwin pointed to Bigelow v. Virginia, a pre-Roe Supreme Court case that made it legal to share information that could help women get abortions, as precedent that would make SB 1373 unconstitutional. However, Goodwin added, the Dobbs decision means the Supreme Court may be unreliable in upholding established precedent.
Robert Corn-Revere, a First Amendment lawyer, said these laws would be “highly unlikely” to succeed and cited the Bigelow v. Virginia precedent. Corn-Revere told Insider that the Supreme Court, despite criticism, has been “very strong in protecting First Amendment rights.” He also noted that there would be “intervening steps,” including initial litigation that would address the law.
Goodwin says, however, that even before the law reaches the Supreme Court, it could have deleterious effects, including turning many women away from seeking abortions.
Givens, who shared a similar sentiment, told Insider that although the bill is unconstitutional, she’s worried lawmakers may not care about the constitutionality. Rather, they may instead be concerned about “scaring people to be silent,” she said.
“In the First Amendment domain, we talk a lot about chilling effects, and statutes like this — even if they are unconstitutional — have a chilling effect on people’s willingness and courage to post information to the people that need it,” Givens said. “And that’s one of my biggest concerns that even discussion of laws like this might have.”
SB 1373 targets internet hosting and tech companies, too
Givens said in the wake of bills that could target people’s electronic records people should take steps to minimize their digital footprint, but also encouraged tech companies to stand up to these state laws and refuse to hand over user data that could implicate people spreading information about abortions.
Hayley Tsukayama, Senior Legislative Activist at Electronic Frontier Foundation, told Insider that while her Foundation in still reviewing the South Carolina bill, she was concerned about the free-speech implications that the bill has, not just for citizens posting information, but for internet companies themselves.
For example, Tsukayama pointed to the fact that internet companies are not always able to restrict sites in certain states, and may have to completely restrict abortion information to comply with state laws.
“So what we fear might happen is that if a bill like this would have passed, then that would have really a chilling effect on everybody’s speech,” Tsukayama said.