This piece is part of an ongoing series examining the implications of the overturning of Roe v. Wade on the pharma industry.
The end of the constitutional right to abortion has quickly morphed into the mother of all health law case studies. The overturning of Roe v. Wade by the Supreme Court has been followed by a tsunami of state abortion bans, which in turn has sent a shockwave of fear through the healthcare provider community and led to a raft of medication access issues.
In yet another development, anti-abortion groups are pushing new laws to block online advertisements about the procedure. These could restrain ads not only about the procedure, but also promotion of medicines used to end pregnancies.
One such group, the National Right to Life Committee, has proposed legislation that would make it a crime to advertise information about abortion pills or other methods of terminating pregnancy. NRLC is lobbying red state lawmakers to adopt it, with the objective of erecting a legal framework through which the government might pursue anyone who “aids or abets” abortion, even those who simply convey information.
The advertising prohibition is included under the model law’s ban on trafficking abortifacients, which the group defines as mifepristone, misoprostol or any other drug dispensed with the intent of causing an abortion. The proposed legislation’s fate will rest with the 30 or so states expected to pass further restrictions.
Interestingly, NRLC’s draft law would handle abortion like organized crime: It would employ a mix of civil and criminal penalties, similar to how the 1970 Racketeer Influenced and Corrupt Organizations (RICO) Act does. The draft law stemmed from the pen of James Bopp, NRLC general counsel, shortly before the Dobbs v. Jackson Women’s Health Organization decision returned the issue of abortion to states. In an appearance on The Daily podcast, Bopp mentioned that Indiana and South Carolina are among the states considering it.
Some abortion advocates believe advertisers should be shielded by the First Amendment’s free speech clause, but others warn that there are multiple legal issues involved. The hazy state of affairs could prompt internet ad platforms to err on the side of caution.
Advertising what is considered in some states to be an illegal activity could thus be one of the next big post-Roe court battles. Florida State University law professor Mary Ziegler told Politico that, under NRLC’s proposed legislation, Google’s web-hosting service could find itself subject to liability. Facebook could similarly be on the hook for user-generated content promoting abortion that is targeted at states where those services are illegal.
The ad networks of Facebook and Google allow advertising for abortion services, subject to their ad-approval processes. But those processes can be murky.
Google, for its part, said abortion-related ads will not appear on the Google Display Network, even if they are eligible. The company does not allow ads related to birth control or fertility products in a wide range of countries.
Facebook parent Meta has an approval process for running ads about abortion, along with medications. But only online pharmacies, telehealth providers and pharmaceutical manufacturers are eligible for certification.
Laws that frown upon sharing abortion information may already be having a chilling effect on the digital ad industry. The Wall Street Journal reported that Instagram has censored posts about medical abortion, although the content in question — posted by nonprofit abortion services provider Carafem — was restored after the company lodged a complaint with Meta.
Other groups have encountered difficulty getting social media platforms to host their organic content. Safe2Choose.org, an online counseling and informational platform that supports women who want an abortion, said that it received an email notification that Google had suspended its YouTube account.
The group appealed the decision on the grounds that it was sharing information on safe abortion. Google’s response, according to a Safe2Choose spokesperson, was to keep the suspension intact.
Other organizations — such as FemHealth USA, which operates Carafem, and nonprofit group Power to Decide — have voluntarily curtailed marketing activities in restricted states since the SCOTUS decision. Telehealth abortion service Choix said it is only advertising in states where abortion remains legal.
Still others remain steadfast in disseminating their message. Plan C, an abortion-rights advocacy group, acknowledged that the process of getting platforms to run its ads has become more arduous. Nevertheless, the company told the Journal that it is moving forward with a series of out-of-home and radio ads in one of the states that recently outlawed abortion.
Carafem noted it has seen success on TikTok, although the platform bans all paid ads promoting abortion. In one video, created in collaboration with Carafem, an influencer shows how to obtain and use abortion pills. The video has racked up more than 2 million organic views.
The most significant worry for digital ad platforms are laws, like the one proposed by the NRLC, that permit civil suits against anyone who assists another person in obtaining an abortion. Such “aiding and abetting” statutes have civil enforcement mechanisms — individuals can be hauled into court multiple times by members of the general public — in addition to their criminal ones.
Pro-abortion voices have said that advertising qualifies as free speech. But for advertisers to muster a First Amendment defense, they would have to prove legal justification — namely, that an advertising ban infringes on their First Amendment rights.
One legal expert who consults for the drug industry noted that if advertisers pay to run a given ad, “They wouldn’t necessarily be scot-free under the way some of these statutes have been written.” This, the expert qualified, isn’t to imply that the restrictive statutes are in fact legal. But the statutes could provide the legal regime to haul an advertiser into court — or jail, for that matter — until a court ultimately rules on their legality.
With Facebook, Instagram, Google and YouTube all screening abortion content, those who advertise or apply for keywords related to abortion products and services, not to mention family planning, should brace for roadblocks and changes in digital ad policies .
As well as more legal battles to come. “The fun here never ends,” said the legal expert. “It’s like the worst law school hypothetical.”