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Keywords

constitutional law; abortion; first amendment; reproductive rights; criminal law

Abstract

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a state in which abortion is now illegal might see it? May the state constitutionally prosecute such speech, or does the First Amendment protect “instructional abortion speech” from prosecution?

This Note explores the application of First Amendment protections and exceptions to internet speech that instructs others how to obtain an abortion, including in states where abortion is now illegal. This Note examines whether instructional abortion speech falls into any of three categories of speech—speech that incites, speech that aids and abets‚ and speech that facilitates crime—and whether such categorization would leave instructional abortion speech protected or unprotected. In light of the First Amendment’s goal of preventing the government from regulating lawful speech and the differing stages of legality of abortion across the country, this Note argues that the First Amendment should protect instructional abortion speech and proposes a mode of analysis for courts to use when evaluating the constitutionality of such speech.

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