IDEAS

Why Freedom of Speech Is the Next Abortion Fight

A legal battle in Mississippi will test whether states can criminalize those who merely provide information.

By Yascha Mounk
AUGUST 22, 2022

About the author: Yascha Mounk is a contributing writer at The Atlantic and the author of The Great Experiment: Why Diverse Democracies Fall Apart and How They Can Endure.

In the middle of July, three big blue billboards went up in and around Jackson, Mississippi. pregnant? you still have a choice, they informed passing motorists, inviting them to visit mayday.health to learn more. Anybody who did landed on a website that provides information about at-home abortion pills and ways to get them delivered anywhere in the United States—including parts of the country, such as Mississippi, where abortions are now illegal under most circumstances.

A few days ago, the founders of the nonprofit that paid for the billboard ads, Mayday Health, received a subpoena from the office of the attorney general of Mississippi. (The state has already been at the center of recent debates about abortion: Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, upheld a Mississippi statute by allowing states to put strict limits on abortion.) The subpoena, which I have seen, demands a trove of documents about Mayday Health and its activities. It may be the first step in an effort to force Mayday Health to take down the billboards, or even to prosecute the organization’s leaders for aiding and abetting criminal conduct. ... Mayday Health is not backing down. This week, it is taking out a television ad on Mississippi channels and putting up 20 additional billboards. This makes the legal fight over the Jackson billboards a crucial test in two interrelated conflicts about abortion that are still coming into public view.

Read: The abortion-rights message that some activists hate

The first is that the availability of abortion pills, which are very safe and effective during the first three months of pregnancy, has transformed the stakes of the abortion fight. The pro-life movement has hoped that states’ new powers to shut down abortion providers will radically reduce the number of abortions around the country. The pro-choice movement has feared that the end of Roe will lead to a resurgence of back-alley abortions that seriously threaten women’s health.

Yet the changes wrought by the recent Supreme Court ruling may turn out to be more contained than meets the eye: Legal restrictions on first-trimester abortions have become much harder to enforce because a simple pill can now be used to induce a miscarriage. Abortion by medication is widely available in large parts of the country; as Mayday Health points out on its website, even women who are residents in states where doctors cannot prescribe such pills can set up a temporary forwarding address and obtain them by mail. ... The second brewing conflict is about limits on free speech. So long as abortions required an in-person medical procedure, the pro-life movement could hope to reduce them by shutting down local clinics offering the service. Now that comparatively cheap and convenient workarounds exist for most cases, effective curbs on abortion require the extra step of preventing people from finding out about these alternatives. That is putting many members of the pro-life movement, be they Mississippi’s attorney general or Republican legislators in several states who are trying to pass draconian restrictions on information and advice about abortions, on a collision course with the First Amendment.

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