Abortion Ruling Could Impact Media Law
Published July 2022
We have already seen some of the impact of the U.S. Supreme Court’s recent blockbuster decision in Dobbs v. Jackson Women’s Health Organization, which reversed its 49-year-old Roe v. Wade precedent and left it to the states to individually determine the availability of abortions.
The debate over abortion is for another forum. But it seems likely that the decision will also bring new legal questions for the media. These questions will arise from the statutes that individual states pass to flex their new powers to regulate—or prohibit—abortion.
Texas Law: For example, Texas has already adopted the Texas Heartbeat Act (known as SB 8), which went into effect on September 1, 2021. While there have been several lawsuits challenging the Act, it has not been enjoined and remains in force.
The Act bans all abortions after a heartbeat is detected, which occurs at about six weeks of pregnancy. But the law also has an “innovative” provision that explicitly forbids state officials from enforcing the law; instead it allows many private individuals to civilly sue those who actually or plan to perform or assist in abortions banned under the Act. The lawsuits can seek an injunction against the behavior, damages of $10,000 per abortion and legal costs and attorneys’ fees.
Any lawsuit under SB 8 has to be brought in a Texas state court. But it is unclear whether abortions occurring in other states can trigger the Texas law. In May 2022—foreseeing the possibility of lawsuits being brought in Texas over abortions elsewhere—Connecticut passed a law that allows anyone sued under the Texas law, or others like it, over an abortion which occurs at least in part in Connecticut to countersue for damages and attorney’s fees.
Also, “assist” is not defined in the Texas statute, leading to concerns that even tangential facilitation of an abortion—such as providing transportation to/from a provider to obtain an abortion in violation of the law—could lead to liability. In reaction, Uber and Lyft pledged to cover drivers’ legal expenses under the Texas law.
Could “assist” also include news reporting on abortion in other states, or even reporting the availability of abortions outside of Texas? It’s a bit unclear. Justice Kavanaugh wrote in his concurring opinion in Dobbs that a state could not bar a resident from traveling to another state to obtain an abortion, based on the constitutional right to interstate travel. The First Amendment should protect speech about that right. Additionally, in 1975 the U.S. Supreme Court held that the First Amendment barred Virginia from prosecuting a Charlottesville newspaper that published—prior to Roe, when abortion was illegal in Virginia but legal in New York—an ad from a New York-based abortion clinic advertising the availability of abortions there.
Of course, that decision occurred two years after Roe, and it’s unclear whether this precedent would be upheld today.
South Carolina Law: South Carolina has its own “fetal heartbeat” law, which is now in effect as a result of the U.S. Supreme Court’s decision in Dobbs. The South Carolina statute does not have a civil action provision like the Texas statute.
But a bill with provisions similar to the Texas law, S. 1373, was introduced in late June. Like the Texas law, it would allow for private lawsuits over abortions that violate South Carolina law. But the bill would go further than the Texas statute, and raises serious First Amendment concerns.
For example, it would ban “providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion.” Arguably, news coverage of the availability and methods of obtaining abortions not permitted in South Carolina by travelling outside the state could violate this provision.
But a very good argument could be made that enforcing such a provision in this way would violate the First Amendment. (In fact, the bill itself states that “This article may not be construed to impose liability or conduct protected by the First Amendment to the United States Constitution or by South Carolina Constitution.”) The U.S. Supreme Court and lower courts have consistently held that media are not liable for criminal acts that they witness, as long as they play no active part in committing or facilitating the crime.
What about Sullivan? In his concurring opinion in Dobbs, Justice Clarence Thomas wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold (v. Connecticut, which held that right of married persons to obtain contraceptives was included within a constitutional privacy interest), Lawrence (v. Texas, which held the same for the right to engage in private, consensual sexual acts), and Obergefell (v. Hodges, holding the same for the right to same-sex marriage).” This is similar to language that Thomas and fellow Justice Neil Gorsuch have used to express their desires to reexamine New York Times v. Sullivan, which established the “actual malice” requirement for public officials—later expanded to public figures—in defamation lawsuits.
Just a few days after releasing its decision in Dobbs, the Court denied review in the latest of a series of appeals which have challenged the Sullivan ruling. But Justice Thomas dissented, writing that “I would grant certiorari in this case to revisit the ‘actual malice’ standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
Such prior statements by Thomas and Gorsuch have so far seemed liked quixotic dreams, since the 58-year-old Sullivan decision and the cases that followed are firmly ensconced in the firmament of our First Amendment law. And there are differences between rights to free speech and abortion, one of the most obvious is that freedom of speech is specifically protected in the First Amendment. But the limitations on free speech restrictions imposed by Sullivan are not explicit in the First Amendment, and the Court’s reversal of Roe shows that even half-century old precedents are not immune from scrutiny and upheaval.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.