The US District court decision of block access to the abortion pill mifepristone has threatened the most common form of abortion. In his ruling, Judge Matthew Kacsmaryk invoked the long-dormant Comstock Law, an 1873 Victorian-era law that targeted obscenity, contraception and abortion materials sent through the mail. While nearly all of the Comstock Act has been ruled unconstitutional, the provisions regarding abortion-related material were never explicitly struck down, and Kacsmaryk’s use of the law in his decision may revive a little-known provision from the 1990s. that allows its application. to the telecommunications law. This decision is a harbinger of a broader crackdown on abortion-related content on the internet.
The Comstock Act’s renewed relevance to the Internet age dates back to its incorporation into the Communications Decency Act (CDA) of 1996. During the passage of the CDA, lawmakers enacted two critical amendments. The first, the Cox-Wyden Amendment, provides immunity from content moderation decisions by online platforms, and is widely credited with laying the groundwork for Section 230, which built the Internet as we know it today. The second amendment, the Hyde/Comstock provision, was designed to have the opposite effect by dangerously restricting online speech. It criminalizes the use of an “interactive computer service” to disseminate “any drug, medicament, article or thing designed, adapted or intended to produce abortion.”
The ACLU challenged the Hyde/Comstock provision immediately after its passage, in Sanger vs. Reno. However, the Clinton administration stated that it would not enforce the provision, and therefore the judge threw out the law, citing that the plaintiffs lacked a “credible fear of enforcement.” So while the Hyde Amendment has lain dormant ever since, it was never struck out of the law. With the current hostility of the Supreme Court towards abortion rights, there is a greater risk that the amendment will eventually be enforced, which could hold websites and social media platforms accountable for abortion-related and chilling content. online speech.
This risk is not hypothetical, as the anti-abortion movement continues to grow bolder in its efforts to limit access to abortion. Legislation recently introduced in Texas and Iowa illustrates this growing drive to censor abortion-related content on the Internet. In Texas, State Representative Steve Toth introduced the Safe Women and Children Act (HB 2690), which imposes civil and criminal penalties for actions related to the provision of abortion-inducing drugs and the facilitation of abortions. Crucially, the bill also targets Internet Service Providers (ISPs) that host websites that promote or provide information about abortion. (The bill explicitly lists specific websites to be censored by ISPs, including AidAccess.org and PlanCpills.org.) If enacted, this bill would empower watchdogs to bring private lawsuits against ISPs to force them to censor content related to abortion access.
These statewide bills are based on private demands from members of the public rather than state enforcement. This circumvents the process for civil rights organizations to challenge an unconstitutional law in court because, in such cases, federal courts require that the defendant be a government official charged with enforcing that law. And because private citizens, not the government, are applying the censorship, tech companies or users can’t sue to block the app before the laws take effect. This defeats the fundamental principle of judicial review of our laws. With a clever little trick, anti-abortion activists have figured out how to undermine key constitutional rights.
This type of vigilante enforcement is how anti-abortion activists were first able to restrict access to abortion in Texas through SB8 Bounty Bill in 2021, before the Supreme Court struck down Roe vs. Wade. The fear of litigation is enough to cool behavior and induce the desired result. As a result, potential civil liability, or the likelihood that they could be sued and incur significant legal costs and damages, could accrue for technology companies that maintain access to abortion-related information.