What Happens in California, Doesn’t Stay in California: First Amendment Implications of Interstate Abortion Advertising Post-Dobbs

Source: Governor Gavin Newsom’s Office (courtesy of CBS News)

By: Blythe Riggan, Vol. 21 Staff Writer

This summer, the Supreme Court left us with more questions than answers. In Dobbs v. Jackson Women’s Health, the Court held that the Constitution does not confer a federal right to an abortion. However, in stripping abortion of its constitutional protection, the Court also places another constitutionally protected right in jeopardy – the First Amendment.

The Current State of Abortion Advertising

With abortion banned in nearly a third of states, information on how (and where) to get care remains critical. Recently, California Governor Gavin Newsom advertised access to California abortion care on billboards in six states with abortion bans. While Newsom rented the billboards as part of his re-election campaign, the advertisements list a link to California’s state website (where information for abortion care is provided).

Some First Amendment scholars suspect that states with abortion bans will also criminalize speech, like Newsom’s, that facilitate or encourage people to have an abortion. These concerns are legitimate, as pro-forced birth groups have already proposed model legislation that punishes sharing information “over the telephone, the internet, or any other medium of communication.” Furthermore, numerous states still have pre-Roe laws that restrict abortion advertisements in effect (including California).

While the Internet always seems to complicate legal matters, abortion advertising is not a new issue to the courts. Shortly after Roe v. Wade, the Court addressed the question of whether bans could apply to abortion advertising in Bigelow v. Virginia. While it’s unclear how closely the Court will stick to its own previous interpretations of abortion laws following Dobbs, gambling cases like United States v. Edge Broadcasting Company may offer a potential preview of the Court’s approach.

Bigelow v. Virginia (1975)

In the early 1970’s, nearly 20 states prohibited abortion advertising – with legal battles continuing even after Roe v. Wade was decided. It wasn’t until 1975 that the Supreme Court would declare these types of bans to be unconstitutional in Bigelow v. Virginia.

At the time of the case, it was a misdemeanor under Virginia law “if any person, by publication, lecture, advertisement…encourage[s] or prompt[s] the procuring of an abortion or miscarriage.”

James Bigelow, managing editor of the newspaper Virginia Weekly, was found guilty after he published an advertisement for a New York City abortion referral service. The New York organization’s advertisement stated that “abortions are now legal in New York” and promised “strictly confidential” services for out of state patients with “no residency requirements.”

Bigelow appealed the circuit court conviction, arguing that the law unconstitutionally violated his First Amendment freedom of speech rights and the freedom of the press. However, the Virginia Supreme Court affirmed the trial court’s ruling, finding that the First Amendment wasn’t applicable since advertising is commercial speech. Upon review, the United States Supreme Court overturned Bigelow’s conviction and held Virginia’s ban on abortion advertising violated the First Amendment.

In a 7-2 ruling, the Court ruled that commercial speech is not “stripped of all First Amendment protection.” Furthermore, a state “may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.” Finally, the Court said that Virginia’s interest in “regulating what Virginians may hear or read” or “shielding its citizens from information about activities outside of Virginia’s borders” is entitled to “little, if any, weight under the circumstances.”

If the Court remains faithful to its interpretation in Bigelow v. Virginia, billboards like Newsom’s would likely be protected speech under the First Amendment. While Newsom’s billboard is not advertising for a particular organization or clinic, the billboards would nonetheless be protected if considered to be commercial (non-commercial protections are even stronger). More importantly, Indiana, Mississippi, Ohio, South Carolina, South Dakota and Texas (the states where the billboards were placed) cannot bar Newsom from disseminating information about a legal activity in California under Bigelow.

While Bigelow was decided while Roe was still good law, the majority opinion notably cites Roe sparingly. In only using Roe to support the premise that abortion advertisements coincide with the constitutional interests of the public, Bigelow has the potential to stand on its own without Roe. However similar cases like United States v. Edge Broadcasting Company, a case pertaining to lottery advertisements, suggests that Bigelow may not be enough to protect abortion advertising.  

United States v. Edge Broadcasting Company (1993)

Given the recentness of Dobbs, cases like the United Sates v. Edge Broadcasting Company help provide examples of more settled examples of advertising an activity in a state where it’s illegal. In this case, Edge Broadcasting Company wanted to advertise the Virginia lottery on a radio station that operated in a North Carolina community, where gambling is illegal. Notably, over 90% of the station’s listeners were Virginians, as it operated near the state border.

The Supreme Court upheld the federal law that prohibited lottery advertising by radio stations located in states that did not operate lotteries. The Court found that the federal law served to carry out the desires of each state by permitting advertising where states choose to have lotteries and prohibiting it where they do not. While radio broadcast is often subject to special regulations and advertisements for illegal activities continue today (i.e. casino advertisements), Edge is a reminder that the Supreme Court has permitted limits on advertisements of this kind.

Remaining Questions

As model legislation and abortion advertisements continue to circulate, Dobbs’ full implication on the First Amendment remains to be seen. Abortion advertisements will likely spur a number of legal battles focused on access to information, publication of advertisements from out-of-state providers, and private citizens’ right to share information that might lead to the termination of a pregnancy.

While Bigelow v. Virginia offers insight on a past Court’s understanding of abortion advertising, today’s Court appears to be less restrained by what past courts have done. However, whether the Court looks favorably on limitations for advertisements promoting illegal activity, like United States v. Edge Broadcasting Company also remains to be seen. Until the Court provides us with more answers than questions, it appears, for at least the time being, that what happens in California won’t necessarily stay in California.

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