Abortion battles are becoming tech policy battles.
Abortion pill protesters outside US Supreme Court
(Michael Nigro/ZUMAPRESS/Newscom)
A bonkers new Texas bill would ban a bunch of activities related to abortion, including taking abortion pills in other states and facilitating or hosting online speech about procuring abortions. It would also hold all abortion pill manufacturers liable for violations when a specific manufacturer could not be ascertained.
"Wait—that's all constitutional?" you might be wondering. To which I say: Ha! This is clearly a bill unburdened by thoughts of constitutionality.
Texas Rep. Steve Toth (R–The Woodlands) introduced the legislation, which is called the Women and Child Safety Act. "If passed, the law would allow citizens to bring civil suits against internet service providers that don't block [certain] websites," writes the feminist pundit Jessica Valenti on Substack.
The Women and Child Safety Act lists six specific websites that must be blocked, but its intended reach is much, much broader. If it were to become law, it would give all sorts of internet service providers a strong incentive to block all sorts of speech related to abortion—a huge chilling effect on legal expression.
Multi-Faceted Madness
The Women and Child Safety Act is a broad bill with both criminal and civil provisions.
On the criminal side, it would create new offenses of "paying for or reimbursing abortion costs" and "destroying evidence of an abortion," both felonies.
The part about paying clearly targets abortion funds—nonprofit groups that help women cover the costs of abortions, including travel out of state in places where abortion is banned. "The legislation prompts the state Attorney General to investigate and charge abortion funds using the RICO Act, which is meant to go after organized crime," Valenti points out.
Other parts of the bill would be enforced by private civil actions.
This includes a prohibition on manufacturing, distributing, mailing, transporting, delivering, or providing an abortion-inducing drug. Doing so could leave one liable for wrongful death or personal injury claims.
The bill would also make the mere possession of abortion-inducing drugs forbidden—though it excludes any "conduct engaged in by a pregnant woman who aborts or attempts to abortion the woman's unborn child." So possession of abortion pills is OK if you're planning to take them yourself. The paternalistic premise here is that women who have abortion are victims, and thus not liable for their actions (very similar to the way some people think paying for sex should be a crime but selling it should not, since sex workers are considered legally unable to consent).
The bill also says it's fine to have the drugs "for purposes of entrapping a person" who violates the law. This is odd, considering that neither the state nor government employees may enforce the law, nor can they team up with private citizens to encourage lawsuits. This seems to indicate that private citizens will be able to conduct abortion-pill entrapment schemes.
Lastly, the bill would ban "provid[ing] information on how to obtain an abortion-inducing drug";"creat[ing], edit[ing], upload[ing], host[ing], maintain[ing], or register[ing] a domain name for an Internet website, platform, or other interactive computer service that assists or facilitates a person's effort in obtaining an abortion-inducting drug"; and "creat[ing], edit[ing], program[ing], or distribut[ing] any application or software for use on a computer or an electronic device that is intended to enable individuals to obtain an abortion-inducing drug or to facilitate an individual's access to an abortion-inducing drug."
Due Process—LOL
The speech-infringing provisions in this bill are huge, and we'll get to those in a minute. But first I want to point out a few especially wild provisions unrelated to speech.
One truly astounding provision says that if someone bringing a lawsuit can't determine which manufacturer made the pill that's the basis for their action, all abortion pill manufacturers can be held liable, with liability "apportioned among all manufacturers of abortion-inducting drugs in proportion to each manufacturer's share of the market for aboriton-inducing drugs."
I don't know what else to say here but…what? This is not how U.S. law works. The authorities can't just say, "Well, if we don't know who violated the law, anybody in this category is guilty!"
Another bonkers provision says that this law would apply "to the use of an abortion-inducing drug by a resident of this state, regardless of where the use of the drug occurs."
Again, this is not the way that U.S. law works. People are liable for following federal laws throughout the country and for following state and local laws when they're in a particular state or locality. A state can't punish you for going to another state and doing things that are legal in that state, and it can't punish a third party in another state for selling you something that is legal in that state.
The crazy continues: The bill says it's no defense for abortion pill manufacturers, distributors, transporters, providers, etc. to say they were relying on a court decision saying the provisions were unconstitutional or unenforceable if that decision ends up being vacated, reversed, or overruled on appeal, even if the first decision was in effect "when the cause of action accrued." Nor is it a defense to rely on "a federal statute, agency rule or action, or treaty that has been repealed, superseded, or declared invalid or unconstitutional, even if that federal statute, agency rule or action, or treaty had not been repeated, superseded, or declared invalid or unconstitutional when the case of action accrued."
So even if defendants are following existing laws or legal precedents, they could still be guilty if courts or lawmakers ever change those laws or precedents. There's no way to actually protect yourself against liability except to act as if the Texas provisions are immediately and impenetrably enforceable.
(Michael Nigro/ZUMAPRESS/Newscom)
Free Speech—LOL
The Women and Child Safety Act would allow civil claims against any computer service "that allows [Texas residents] to access information or material that assists or facilitates efforts to obtain election abortions or abortion-inducing drugs." Claims could also be brought against any "platform for downloading any application or software…that is designed to assist or facilitate efforts to obtain election abortions or abortion-inducing drugs," and against against platforms that allow or enable "those who provide or aid or abet election abortions, or those who manufacture, distribute, mail, transport, deliver, or provide abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value."
If this bill were to pass and become Texas law, the state could use it to sue the likes of GoDaddy, Bluehost, the Apple App Store, Bluesky, X, Substack, and many other tech companies that facilitate free speech.
It would be a crime to allow groups that promote or even just provide information about getting abortions to register domains, access web-hosting services, or distribute apps. It would be illegal to let them send out newsletters, maintain social media accounts, or use payment processing services.
It would even be illegal to let someone send out a newsletter, post on social media, or otherwise note the existence of groups that provide information about abortion. Hosting any information about groups or entities that "aid and abet" abortion would be against the law.
Theoretically, tech companies would only have to block access to these websites, posts, newsletters, etc. for Texas residents. But in most cases, that's technologically unfeasible. Social platforms don't have the ability to restrict individual posts for users in a certain area, or block individual accounts for only Texas residents. Substack isn't going to review all posts in advance and somehow block them from being sent to Texas residents. To comply with the Texas law, entities would have to entirely block offending accounts and websites entirely, or entirely lock out Texas residents.
Much of what would be blocked would be legal speech. Because even if we grant that someone in Texas posting information about abortion pills would be an illegal direct solicitation to criminal action (and this is not at all a given), the fact remains that most of the groups, doctors, and others posting about how to get out-of-state abortions would be based out of state. It's obviously not illegal for a doctor in a state where abortion is legal to prescribe abortion pills or to tell people how to get a prescription. It's not illegal for an abortion fund outside Texas to provide information on how to get an out-of-state abortions. None of these entities are under any obligation to follow Texas law—yet this bill would require internet entities to block access to people in other states engaging in legal speech.
If Texas were to go after such speech directly, it would be a violation of the First Amendment. The fact that this law will be enforced by private lawsuits is probably an attempt to get around this. But I don't think the courts will accept that
And I think Toth knows this. Because the bill makes a pathetic nod to the Bill of Rights, stating that it "does not prohibit…speech or conduct protected by the First Amendment." But you can't just say "this law doesn't ban protected speech" while attempting to ban protected speech and then call it a day.
Toth's bill also states that people cannot bring civil actions under the suit "if the action is preempted" by Section 230—the federal law that protects web entities from some liability for third-party speech—and says that no one can be "held liable or legally responsible for the conduct of a publisher or speaker of any information provided by another information content provider."
Again, we have contradictory directives. A huge swath of the bill is concerned with holding parties liable for "information provided by another information content provider." If that's not allowed, then entire sections of this bill are moot.
And they should be, because Section 230 draws a clear distinction between those who "create" content that breaks laws and those who merely facilitate third-party communication that winds up being illegal. It clearly says that interactive computer services are protected from liability for information created by a third party. And it's clear that private actors in civil cases cannot go after "interactive computer services" (or their users) for third-party content.
Providing a platform or tool that facilitates legal speech—which most communication about abortion pills is—is protected by the First Amendment. And providing a platform or service that merely serves as an conduit for third-party speech that turns out to be illegal is protected by Section 230. Texas can't unilaterally declare that the First Amendment and Section 230 don't matter when abortion pills are concerned.
But as Valenti points out, the Texas bill is "part of a broader attack on free speech about abortion."
We saw this before Roe v Wade, and we're seeing it now. And because the internet is so integral to speech about anything these days, abortion battles are also going to become tech policy battles.
More Sex & Tech News
- In a new study, "doctors who were given ChatGPT-4 along with conventional resources did only slightly better than doctors who did not have access to the bot" at diagnosing illnesses. But "ChatGPT alone outperformed the doctors," The New York Times reports.
- X is suing over California's deepfake law, arguing that it "will inevitably result in the censorship of wide swaths of valuable political speech."
- Michigan is the latest state to consider legislation that would require social media platforms to age-verify users, require minors to get parental consent in order to maintain accounts, and impose a curfew on when minors could use social websites.
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