The next front in the US abortion wars may be what people are allowed to say about it.
More than two years after the US supreme court overturned Roe v Wade in the case Dobbs v Jackson Women’s Health Organization, US abortions are on the rise, thanks in large part to the spread of abortion pills and travel across state lines. This has infuriated anti-abortion advocates, who have proposed policies to help the incoming Trump administration curtail the mailing of abortion pills and targeted individuals and groups that help women get out-of-state abortions. In a sign of how the issue is pitting states against one another, Texas earlier this month sued a New York-based doctor who allegedly provided a telehealth abortion to a Texan woman.
In an effort to cut off the avenues remaining to people in states with bans, the anti-abortion movement is looking at ways to control information about how and where to obtain abortions. State lawmakers have filed at least two bills for the 2025 legislative session that target abortion-related speech.
“What now matters in a country where a third of the country bans abortion and other states do not is the flow of people, the flow of pills and the flow of information,” said Rachel Rebouché, an expert in reproductive health law and the dean of Temple University’s law school. “Controlling what people can find out about services that are not legal in their state but are legal somewhere else is part of this larger conversation post-Dobbs.”
One of the 2025 bills, pre-filed in Texas, would make it illegal to “provide information on how to obtain an abortion-inducing drug” and to maintain a website that “assists or facilitates a person’s effort in obtaining an abortion-inducing drug”. It would also force internet service providers to block people from accessing websites run by Aid Access, Plan C and other groups that help people obtain medication abortions, even when they’re doing so through the healthcare system.
The second bill, which was pre-filed in New Hampshire, would ban “abortion trafficking”, or the practice of transporting minors for abortions without their parents’ permission, as well as forbid people from “recruiting” minors for having abortions. This kind of language, which appears in model legislation written by the prominent anti-abortion group National Right to Life, has left abortion rights activists fearful – especially since two states, Idaho and Tennessee, have already passed laws to ban abortion trafficking and “recruiting”. Abortion is legal in New Hampshire until 24 weeks of pregnancy.
The language in the bills could have far-reaching consequences. “There is no specific meaning to what ‘recruiting’ is in the law. It could be anything – like having a conversation with someone, sharing general information, persuading,” said Kylee Sunderlin, director of legal services at If/When/How, which runs a helpline for people looking for information about abortion, miscarriage and birth. Sunderlin continued: “If totally factual information that I provide to someone through the Repro Legal Helpline in some way persuades them toward the decision to have an abortion, then, yeah, that could definitely be seen as ‘recruiting’.”
Earlier this month, the San Francisco-based ninth US circuit court of appeals ruled to let most of Idaho’s abortion trafficking ban take effect but froze the “recruiting” provision, which the judge M Margaret McKeown said would likely curtail speech protected by the first amendment.
Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights, believes the attempt to restrict “recruiting” young people is likely a trial balloon for future laws that target people of all ages. “Every ban that we have seen on adult access to care started with a ban on youth access to care,” Smith said.
Abortion opponents have also experimented with recategorizing specific kinds of talk. In 2024, lawmakers in Idaho, Mississippi, Oklahoma and West Virginia introduced bills to limit abortion-related speech. Three of those bills would have restricted advertising around abortion, such as billboards that let people know about out-of-state options. Under US constitutional law, commercial speech – such as advertising – is often easier to regulate than political speech.
Although the 1975 supreme court case Bigelow v Virginia has protected advertising around abortion, Harvard Law School lecturer Dessie Otachliska isn’t convinced that it would survive a return to the modern-day, hyper-conservative supreme court.
“That opinion is a little bit shaky. There’s ways to overturn it,” said Otachliska, who has written about post-Roe threats to abortion-related speech. “It could be that there is a pathway where certain advocates are hoping or thinking that if Bigelow goes back in front of the supreme court, that precedent will fall.”
A federal court has also temporarily blocked Tennessee’s abortion trafficking ban. The state has appealed that ruling. Especially if the outcome is different from the appeals court ruling in the Idaho case, the supreme court may decide to step in and rule on the contours of abortion-related speech and what it means to “recruit” a young person for an abortion.
“Because these are novel laws that are being passed by more and more states, it signals that the issue is not going away,” Rebouché said.
