When the city of Lebanon banned abortion in 2021, it initially seemed like a pointless stunt. At that point, Roe v. Wade was still the law of the land, and there were no abortion clinics in Lebanon, a city of around 21,000 people in southwestern Ohio. But social workers and activists worried that the ban's broad language could be used to punish people for counseling or otherwise helping women obtain abortions outside the city.
That dauntingly vague, speech-chilling threat was magnified after the Supreme Court overturned Roe in June 2022. But in the face of a constitutional challenge, the city amended its ordinance last fall, excising language that threatened people with prosecution for "aiding and abetting" abortion.
Lebanon's ordinance made it unlawful "to procure or perform an abortion of any type and at any stage of pregnancy in the city of Lebanon." It also banned possession or distribution of "abortion inducing drugs" and made it illegal "to knowingly aid or abet" an abortion.
The city defined aiding and abetting to include activities such as providing transportation to an abortion clinic, providing "abortion doula" services, giving money to someone with knowledge that it would be used to terminate a pregnancy, or "giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortion." The ordinance also covered any other conduct that "makes one an accomplice to abortion."
Lebanon was not only criminalizing constitutionally protected speech; it was trying to criminalize speech outside Lebanon. On May 11, 2022, nine days after Politico published a leaked draft of the Supreme Court decision overturning Roe, the National Association of Social Workers and the group now known as the Abortion Fund of Ohio filed a federal lawsuit challenging Lebanon's ordinance. The two organizations argued that the ordinance violated the First Amendment and the 14th Amendment's guarantee of due process, which requires "fair notice" of what a law prohibits.
"This case concerns whether a municipal government may enact a vague, sweeping ordinance that can be interpreted to criminalize virtually all activity even tangentially connected to abortion without providing fair notice of the specific conduct it forbids," said the complaint, which was filed in the U.S. District Court for the Southern District of Ohio. "The Ban asks ordinary citizens….to interpret and apply complex, nuanced legal concepts in order to determine whether their conduct is likely to subject them to prosecution."
A declaration from a Lebanon-based social worker identified as "Beth Doe" illustrated the quandary created by the ban. "No matter the focus of one's social work practice, pregnancy is an issue that can arise at any time," she noted. "I worry that the ordinance encompasses the information and referrals related to abortion that I provide to clients, even in cases where my client is not located in Lebanon, because I am personally located in Lebanon."
The law's prohibition of aiding and abetting "poses more questions than it answers," the plaintiffs argued. Did offering emotional support to someone obtaining an abortion count? Could Lebanon-based donors to the abortion fund be prosecuted if the organization covered transportation and lodging expenses for someone seeking an abortion outside Lebanon?
Rather than defend the ordinance's aiding-and-abetting provision, Lebanon quickly capitulated, formally agreeing in May to amend the ordinance. In the meantime, it promised not to prosecute the plaintiffs or any of their members, volunteers, staff, or donors for aiding and abetting abortion.
The amended ordinance, enacted in September 2022, still prohibits abortion and the possession or distribution of abortion-inducing drugs. But the entire section on aiding and abetting is gone.
In January, the city further stipulated that it "does not claim authority to enforce its prohibitions against conduct" that occurs outside Lebanon. It also stipulated that the ban does not apply to "an abortion where mifepristone and misoprostol"—the two drugs used in the U.S. abortion-pill regimen—"are prescribed and dispensed to a pregnant woman outside Lebanon, and then she ingests the misoprostol [the second drug in the two-step process] in Lebanon." Nor does the law touch conduct that "aids or abets a drug-induced abortion in which the patient ingests misoprostol in Lebanon."
That's one small victory for free speech and due process. But similar battles are playing out across the country and likely will for years.
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