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Is There a Constitutional Right to Talk About Abortion?

There has hardly ever been as fierce a defender of free speech as the current Supreme Court.

Since John Roberts became chief justice almost 19 years ago, the court has expanded the protective net of the First Amendment to cover such activities as selling videos depicting animal torture, spending unlimited amounts of money in support of political candidates and refusing to pay dues (or a dues-like fee) to a public employee union.

This last decision, Janus v. American Federation of State, County and Municipal Employees, Council 31, overturned a 41-year-old precedent and led a dissenting justice, Elena Kagan, to accuse the majority of “weaponizing the First Amendment.” In the 303 Creative case last year, the court gave a Christian web designer the First Amendment right not to do business with would-be customers whose same-sex wedding websites would violate her views about marriage.

The court’s version of free speech has become a powerful tool against government regulation. Six years ago, effectively striking down a California law, the court gave so-called crisis pregnancy centers — offices that try to imitate abortion clinics but strive to persuade women to continue their pregnancies — a First Amendment right not to provide information on where a woman could actually get an abortion. The state said the notice was needed to help women who came to such centers under the false impression that they provided abortions. In his majority opinion, Justice Clarence Thomas said the “unduly burdensome” requirement amounted to unconstitutionally compelled speech.

Now the question is whether the court’s solicitude toward those who would rather not talk about abortion extends in the other direction. What about state laws that prohibit rather than require offering information about where to get an abortion?

While there is not yet such a case on the Supreme Court’s docket, lower courts have been tightening a First Amendment noose around efforts by anti-abortion states to curb the flow of information about how to obtain legal abortion care across state lines. Federal District Courts in Indiana and Alabama both ruled this month that while states in the wake of Roe v. Wade’s demise can ban abortion, they cannot make it illegal to give abortion-related advice, including advice to minors seeking abortions without parental consent.

A federal magistrate judge issued a similar ruling last November on Idaho’s abortion law, one of the most extreme in the country, which makes it a crime to assist a minor in obtaining an abortion in any state without a parent’s consent. Idaho could criminalize abortion, the judge, Debora Grasham, wrote. “What the state cannot do,” she went on, “is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights.” The United States Court of Appeals for the Ninth Circuit heard Idaho’s appeal on May 7.

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