US region The court’s decision to block access to the abortion pill mifepristone threatened the most common form of abortion. In his ruling, Justice Matthew Kaksmarek invoked the long-dormant Comstock Act, an 1873 Victorian law targeting obscenity, contraceptives and abortions sent through the mail. While nearly all of the Comstock Act has been deemed unconstitutional, the provisions on abortion-related articles were not explicitly overturned—and Kacsmarek’s use of the law in his decision could revive a little-known provision from the 1990s that would allow him to apply to the Telecommunications Act. This decision presages a broader crackdown on abortion-related content on the Internet.
The importance of the renewed Comstock Act for the Internet age can be traced back to its incorporation into the Communications Decency Act (CDA) of 1996. While passing the CDA, lawmakers made two crucial amendments. The first, the Cox-Wyden Amendment, provides immunity to decisions to moderate online platforms’ content, and is widely credited with laying the groundwork for Section 230, which built the Internet as we know it today. The Second Amendment, the Hyde/Comstock ruling, is designed to have the opposite effect by seriously restricting online speech. It criminalizes the use of an “interactive computer service” to disseminate “any drug, drug, article or thing designed, adapted or intended to produce abortion”.
The ACLU challenged the Hyde/Comstock ruling immediately after it was passed Sanger vs. Renault. However, the Clinton administration stated that it would not enforce this provision and thus the judge dismissed the law stating that the plaintiffs lacked a “reasonable fear of enforcement”. So, although the Hyde Amendment has been dormant since then, it has not been removed from the law. With the Supreme Court’s current hostility toward abortion rights, there is a growing risk that the amendment could finally be enforced, potentially holding websites and social media platforms accountable for abortion-related content and horrifying rhetoric online.
This risk is not hypothetical as the anti-abortion movement continues to grow more aggressively to limit access to abortion. Recently introduced legislation in Texas and Iowa illustrates this growing pressure to censor abortion-related content on the Internet. In Texas, State Representative Steve Toth introduced the “Woman and Child Safety Act” (HB 2690) that imposes civil and criminal penalties for actions related to the provision of abortion-inducing drugs and the facilitation of abortions. Crucially, the bill also targets Internet service providers (ISPs) that host websites that promote or provide information on abortion. (The bill explicitly lists specific websites that must be censored by ISPs, including AidAccess.org and PlanCpills.org.) If enacted, the law would enable guards to file private lawsuits against ISPs. To force them to censor content related to access to abortion.
These state bills rely on private lawsuits by members of the public rather than state enforcement. This circumvents the process for civil rights organizations to challenge an unconstitutional law in court because, in those cases, federal courts require the defendant to be a state official responsible for enforcing that law. And because private citizens, not the government, enforce censorship, neither technology companies nor users can sue to prevent enforcement before the laws go into effect. This goes against the basic principle of judicial review of our laws. With a simple little trick, anti-abortion activists have figured out how to undermine basic constitutional rights.
This kind of vigilante enforcement is how anti-abortion activists were first able to restrict access to abortion in Texas with the SB8 bonus bill in 2021, before the Supreme Court overturned it. Roe v. Wade. Fear of litigation is sufficient to moderate the behavior and achieve the desired outcome. As a result, potential civil liability — or the potential to be sued and incur significant legal costs and damages — can accrue to tech companies for maintaining access to abortion-related information.