From Nat'l Inst. of Family & Life Advocates v. James, decided today by Judge Joseph Bianco, joined by Judges Eunice Lee and Alison Nathan:
This case concerns statements that certain non-profit organizations that provide services and resources related to pregnancy and parenthood have made, or wish to make, about a protocol intended to counteract the effects of an abortion induced by oral medication.
A woman may seek to have a medication-induced abortion by first taking a dose of mifepristone followed by a dose of misoprostol 24 to 48 hours later. The dose of mifepristone is designed to block the body's progesterone receptors. Progesterone is a hormone critical to maintaining a pregnancy, and, by blocking its receptors, mifepristone can prevent the pregnancy from continuing. Once the progesterone receptors have been blocked, effectively ending the pregnancy, the dose of misoprostol induces the uterus to expel its contents.
If a woman has begun a medication-induced abortion by taking mifepristone, but has not yet taken misoprostol and decides she would like to continue her pregnancy, she may take progesterone supplements in an attempt to counter the effects of the mifepristone. The theory is that the progesterone supplements can increase the woman's progesterone levels to such a degree that the effects of mifepristone are neutralized. This use of progesterone is called "abortion pill reversal" or "APR." …
The NIFLA plaintiffs allege they have made religiously and morally motivated statements about APR on their website, social media, and in other materials … includ[ing]: (1) "if you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs. Learn more here"; (2) "Progesterone … has been used to support pregnancies with a risk of miscarriage for decades[.] … [I]f you've taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy!"; and (3) links to abortionpillreversal.com, the APR hotline, and the APRN webpage.
NIFLA sued the New York AG's office, claiming that the AG's past enforcement actions against pro-APR speakers chilled NIFLA's speech as well. And the Second Circuit "conclude[d] that the district court did not abuse its discretion, based on the record at this stage of the litigation, in finding that the NIFLA plaintiffs were likely to succeed on their First Amendment claims because their speech at issue is noncommercial speech, and the Attorney General has not demonstrated that regulation of that speech would survive strict scrutiny":
