The bill aims to block more than abortion: Provisions would outlaw providing information over the internet or phone about how to obtain an abortion. It would also make it illegal to host a website or “[provide] an internet service” with information that is “reasonably likely to be used for an abortion” and directed at pregnant people in the state.
Legal scholars say the proposal is likely a harbinger of other state measures, which may restrict communication and speech as they seek to curtail abortion. The June proposal, S. 1373, is modeled off a blueprint created by the National Right to Life Committee (NRLC), an antiabortion group, and designed to be replicated by lawmakers across the country.
“These are not going to be one-offs,” said Michele Goodwin, the director of the Center for Biotechnology and Global Health Policy at the University of California at Irvine Law School. “These are going to be laws that spread like wildfire through states that have shown hostility to abortion.”
Eric Goldman, a professor at Santa Clara University School of Law, said the First Amendment and Section 230, a bill that shields internet providers and tech companies from liability for the posts, photos and videos people share on their sites, provide a strong defense in many instances for websites and providers facing lawsuits over hosting information about abortion access.
For the NRLC, which wrote the model legislation, limiting communication is a key part of the strategy to aggressively enforce laws restricting abortion. “The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity,” Jim Bopp, the group’s general counsel, wrote in a July 4 memo, comparing the group’s efforts to fighting organized crime.
In an interview with The Washington Post, Bopp said that the group has refined its blueprint for states since the South Carolina bill was introduced last month. The restrictions on websites and internet hosts in the July model bill language would only apply when the information is likely to be used “for an unlawful abortion in this state,” he said, not abortions generally, as the South Carolina bill says.
Democrats are expected to respond to the conservative states’ with their own regulatory efforts, largely focused on protecting sensitive data. California State Assembly member Mia Bonta introduced legislation earlier this year that would protect people from law enforcement requests from other states to turn over information that would identify people seeking an abortion.
A staffer in Bonta’s office said she introduced the legislation amid concerns that the Supreme Court would overturn Roe. Planned Parenthood Affiliates of California approached her with the concept of the legislation. The bill will have a hearing in August, and Bonta’s staff is working on amendments to strengthen the legislation in the wake of the Dobbs v. Jackson Women’s Health Organization decision.
The Electronic Frontier Foundation, a privacy advocacy group, expressed support for the California privacy bill and is reviewing the South Carolina legislation. Hayley Tsukayama, a senior legislative activist at EFF and a former Post reporter, said the South Carolina bill has “serious problems.”
