“I think what we’re going to see in the next five years and the next few years is how it goes with interstate law,” said Kevin Grillot, committee chair of March for Life Chicago, noting that the publicity of illegal activities could be territory for litigation.
Legal experts agree that fights are likely: The Supreme Court case on abortion is now decided, but other procedural battles are still looming, including over publicity.
Under legislation proposed by the National Committee for the Right to Life, Google’s web hosting service could be in trouble, said Florida State University law professor Mary Ziegler. Similarly, Facebook could be liable for any user-generated content that promotes abortion and is directed at people in states where such services are illegal.
As these platforms continue to host abortion-related ads, abortion rights group Plan C said it was difficult and increasingly difficult to get ads promoting abortion approved. abortion services.
The biggest concern for short-term digital advertising platforms are laws, similar to the National Committee for the Right to Life proposal, in Oklahoma and Texas that allow civil lawsuits against anyone who helps someone else to have an abortion.
Both states allow residents to sue parties who aid or abet an abortion with damages set at a minimum of $10,000. While the laws specify that paying for an abortion is considered aiding and abetting, legal experts say the laws could extend to advertising.
Defense of advertisers
Abortion advocates say publicity for the procedure is protected by the right to free speech.
“Defending a person’s right to have an abortion, educating a person on how to have a legal abortion, encouraging a person to make their own reproductive health choices, all of these are protected by the First Amendment,” he said. said Vera Eidelman, a staff attorney. with the ACLU’s Speech, Privacy and Technology Project.
There is also Supreme Court precedent protecting advertisers. Before the Roe vs. Wade decision, some states explicitly banned advertising for abortion services. In 1971, Jeffrey Cole Bigelow, editor of a Charlottesville-based underground magazine called Virginia Weekly, ran an ad for an abortion clinic in New York, despite a Virginia law that made it a crime to ” encourage or incite to have an abortion”. Bigelow was arrested and convicted, but his case eventually went to the Supreme Court, which ruled in his favor.
In the majority view, then-Judge Harry Blackmun wrote that the advertisement did not promote a mere commercial transaction. “It contained factual material of clear public importance” and was entitled to First Amendment protection, he wrote. However, the decision came at a time when the court was in favor of abortion rights, having granted it constitutional protection two years earlier in the deer decision. Today’s court may feel differently.
Eidelman thinks that Section 230 of the Communications Decency Act of 1996, which states that websites cannot be held liable for content posted on them by users, is also likely to protect internet companies. But she recognizes a certain legal uncertainty.
Implications for technology
For groups like the National Right to Life Committee, the uncertainty helps the cause.
Ziegler predicts that laws that criminalize the sharing of abortion information will have a chilling effect on the digital advertising industry, possibly causing platforms to voluntarily remove abortion advertising and content. abortion in states where it is not legal. This may already be happening. Last month, Defect reported that Instagram and Facebook have deleted user posts offering to share abortion pills. Meta, their parent company, said the posts violated its restricted goods policies.
Facebook and Google allow advertising for abortion services on their ad networks, however, abortion advocacy groups have said the platforms’ ad approval process is opaque.
Dimitratou said she struggled with ads using phrases like “terminating a pregnancy” or simple words like “pills.”
To promote keywords related to the act of seeking an abortion, advertisers must seek certification from Google and prove that they are not committing fraud. To block advertising for fraudulent products, Google filters ads before they appear on its site, using software and staff to flag seemingly innocuous words.
Plan C, as an advocacy group, is not always qualified for the types of certifications that abortion providers can obtain and has not applied for them.
Several abortion clinics said they don’t have the same difficulty getting ads approved by Internet companies. They also do not advertise in states where abortion is illegal.
Dimitratou said Facebook often rejects Plan C ads for “promoting the sale of dangerous substances,” the determination of which is at the discretion of parent company Meta. Like Google, Meta has approval process to run advertisements on abortion as well as on drugs. However, only online pharmacies, telehealth providers and pharmaceutical manufacturers can apply.
Google recognizes that its advertising policies may change. For example, Google recently allowed groups distributing abortion pills by mail to qualify for advertising certifications previously only given to in-person abortion providers after the FDA cleared distribution by mail in December 2021. Google bans ads related to abortion in 72 countries where it is illegal.
Michael Aciman, a Google spokesman, said he is “still evaluating the court’s decision and laws across the country and will continue to monitor new developments.”