After the birth control method Plan B reached the market in 1999, conservatives claimed that carrying the drug, which they wrongly conflated with abortifacients, “must be left to the pharmacy.” In their view it infringed “on the pharmacist’s right of conscience,” tied to the First Amendment, if pharmacies were required to provide Plan B.
Conscience protections extend to other forms of contraception as well. Since the late 1980s, Republican lawmakers have been writing legislation to shield pharmacists who would not dispense traditional birth control, claiming conscientious convictions superseded a woman’s right to contraception. Today, six states allow pharmacists to refuse to dispense birth control, even though Plan B is considered the “gold standard” response in cases of rape.
Anti-abortion crisis pregnancy centers also have been protected by free speech concerns. When states passed laws to regulate such centers, the National Institute of Family and Life Advocates took a free-speech case all the way to the Supreme Court in 2018, and won.
Equally alarming, in the 2014 decision in Burwell v. Hobby Lobby, the court ruled that the Religious Freedom Restoration Act of 1993 permitted large, for-profit corporations to deny contraception coverage to their female employees based on the religious objections of the company’s owners. While the ruling applied only to the Affordable Care Act’s contraceptive mandate, in a bristling dissent written by Justice Ruth Bader Ginsburg, she noted the “startling breadth” and extremity of the opinion, which she said the court could not “pretend” was demanded or required by the First Amendment’s free exercise clause.
What’s different today is that, post-Roe, the stakes have changed. More Americans lack access to abortion than before, and abortion access has everything to do with access to information. That is where anti-abortion groups are seeking an edge.
The death of Roe has given at least some abortion foes second thoughts about their proclaimed love of free speech. The National Right to Life Committee has also proposed a model law that would define “aiding or abetting” an abortion to include speech that “encourages or facilitates efforts to obtain an illegal abortion.” But conservative lawmakers don’t even need a new law: Most states already have criminal laws on aiding or abetting, and prosecutors could apply them to people who provide information about abortion.
This could be at issue in Mississippi, where the attorney general’s office recently sent a subpoena (a possible prelude to criminal charges) to Mayday Health, a health education nonprofit that put up billboards directing women to a website with information about medication abortion.
Michele Goodwin and Mary Ziegler
Source link