EMILY GILL

In a recent (May 20) New York Times column, Linda Greenhouse, a Pulitzer Prize winner and the NYT Supreme Court reporter for 30 years, asked whether there is a constitutional right to talk about abortion. The current Supreme Court has decided a number of cases on the basis of free speech. That is, web designers and cake bakers should not be forced to engage in activities that violate their religious principles, as this would amount to compelled speech, implying support for activities of which they disapprove. In 2018, the Court awarded crisis pregnancy centers a First Amendment right not to provide information to pregnant women about the availability of abortion elsewhere (National Institute of Family and Life Advocates v. Becerra).

The current issue is not the right to withhold information, but the right to provide it. Several states have not only prohibited abortions, but have also attempted to muzzle speech about where to obtain one. Federal district courts in Indiana and Alabama ruled last month that although a state may ban abortions, it may not ban abortion-related advice that a clinic that can no longer provide abortions might offer. The states argue that they are merely prohibiting criminal conduct by withholding information that might induce patients to go out-of-state for abortions that are prohibited in their home states. In Indiana, however, the judge said that the prohibition on speech “does not further any interest Indiana may have in investigating criminal conduct within its borders.” The Alabama judge said that because the state cannot forbid out-of-state abortions, it was in effect punishing speech that might enable patients to get them.

If these cases are appealed to and reach the Supreme Court, the justices will face a dilemma. On the one hand, the conservative majority might want to double down against abortions and might rule in favor of state laws that prohibit the sharing of information on where to obtain them out-of-state. On the other hand, this outcome would contradict their fervent defense of the First Amendment in cases involving what they view as compelled speech, as with the crisis pregnancy centers as well as cases involving web designers and cake bakers.

These First Amendment issues are not new. In 1991 in Rust v. Sullivan, the Supreme Court upheld public funding for a family planning program that was contingent on private social service providers’ silence about abortion as an option. It ruled that “the government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program that seeks to deal with the problem in another way.” Because public funds supported this program, one could argue that the government was entitled to express its own values and viewpoint, although I vehemently disagree with this viewpoint. Although crisis pregnancy centers apparently receive no public funding, they are licensed by the state. Therefore, publicly licensed facilities should provide accurate medical information pertaining to women’s health choices.

There is one point on which I suspect everyone agrees: If the Supreme Court thought that by eradicating the right to abortion through Dobbs v. Jackson Women’s Health Organization, the states would figure things out and the justices would no longer be plagued by cases dealing with abortion, they miscalculated.

— Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University