Texas lawmakers want to erase abortion from the internet

Since the U.S. Supreme Court overturned Roe v. Wade, state legislators across the country have introduced laws implicating the doctors who perform the procedure, reproductive health clinics, pharmacies that dispense abortion medication and people who seek out abortions at a rapid clip. But some are going even further by seeking to eliminate any information about how and where one can get an abortion or access abortion medication.

Last month, lawmakers in Texas introduced a bill that targets websites, people and companies that facilitate the dissemination of abortion-related information online with fines and other penalties.

This is among a handful of bills that show how abortion battle lines are being drawn around peoples’ virtual lives, with opponents moving to censor information about the procedure and deploy digital surveillance tools in order to enforce state-level bans. The Texas statute shares some similarities with a now-withdrawn Iowa bill that would have required internet service providers to block websites that publish resources about accessing abortion care, as well as a proposed South Carolina measure that would prohibit websites from publishing abortion-related information.

The Texas bill would also round out what is already one of the most conservative abortion regimes in the country. The procedure is banned in Texas, with no exceptions for rape or incest. Anyone found running afoul of the law by providing abortion care can face up to life in prison. The state has also enlisted Texans in its campaign against abortion with a so-called “bounty” law passed in 2021 that encourages private citizens to sue anyone who helps a person get an abortion. Another law currently pending before the state legislature would further expand people’s abilities to file such lawsuits.

The new, internet-focused bill would prevent people in Texas from accessing abortion-related information online in a variety of ways. In addition to criminalizing the purchase and sale of abortion-inducing drugs via the internet, the bill would make it illegal to create, edit, publish, host or maintain a website that “assists or facilitates a person’s effort in obtaining an abortion-inducing drug.” This would implicate not only the entities that run these kinds of sites — often non-profits that connect patients with clinicians — but would also extend to internet service providers like Comcast or Verizon, and possibly even to hosting services like Amazon or GoDaddy. Similar to the state’s anti-abortion “bounty” policy, the bill encourages Texans to sue any website that violates the proposed law — a provision that critics say is explicitly designed to suppress free speech by dangling the threat of litigation over people who publish abortion-related information online.

The Texas bill would compel internet service providers to block Texans’ access to websites that provide information about where, and how, to access abortion care, including through medication. The law could also affect social media platforms, where users can easily post such material, and even digital payment platforms, which some services use to collect payment for abortion medication.

Pressuring internet service providers to block websites may be a non-starter in the U.S. due to its First Amendment protections for free speech. But it is a time-honored tactic used by authoritarian governments from Azerbaijan to Venezuela, with a broader goal of getting people to stop publishing the information in question.

Hayley Tsukayama, an expert with the Electronic Frontier Foundation, says “the law is systematically set up to silence people, to chill speech.” 

“It makes it a lot scarier for people to speak or to seek information” about abortion care, Tsukayama added. “When you’re talking about reproductive care, a lot of it is information that people, who are in a really vulnerable situation, are seeking.”

Tsukayama and staff at other digital rights groups monitoring state-level abortion and censorship policies say the Texas bill appears to be taking a new approach by focusing on telecommunications companies and seems to be the only law of its kind pending before a state legislature.

The Texas law also singles out six websites by name that internet providers would be required to ban under the law, including the site for Plan C, a campaign that provides information resources for people seeking medication abortions. Amy Merrill, the group’s digital director, said the bill marked the first time Plan C has been identified in anti-abortion legislation. Merrill told Coda that the organization consulted with legal experts about the proposal, which they believe is unconstitutional, and will continue to publish the information on their site as usual. 

“The way we see it is that any law that is attempting to prevent people from sharing public health information about abortion access is a clear violation of our First Amendment rights,” Merrill explained. “We refuse to be bullied by legislators who attempt to pass illegitimate laws and will continue to provide our research-based information on our website.”

The Texas bill’s decision to name Plan C and attempt to force internet providers to block its content comes as the site — and the topic of medication abortion more broadly — is experiencing historic levels of visibility in public life, according to Merrill.

“Things have become more enunciated and extreme in every direction,” she said. “The language of the laws has become more extreme. The level of activism and pushback has become heightened. And awareness of abortion pills has just skyrocketed.” When Plan C’s website went live in 2016, Merrill said there were just a handful of websites publishing resources about medication abortion. Fast-forward seven years and the number of websites coming online with information about abortion pills has increased exponentially, alongside explosive growth in Plan C’s website traffic. These factors may have influenced anti-abortion lawmakers’ efforts to take these websites offline. “The Genie is not going back in the bottle,” Merrill said. 

But even if this information remains public, the sites and companies that make it easy to find online may increasingly be subject to hostile state laws seeking to censor their information or take them offline. 

Globally, websites that offer information about obtaining abortion pills in countries with extremely restrictive abortion laws have long dealt with efforts to censor their work online. Women on Web, an international organization that sends abortion pills to people in countries where the procedure is illegal or highly restricted and operates a website with resources about medication abortion in more than two dozen languages, is no stranger to such efforts. Since 2019, the nonprofit’s website has been blocked by internet service providers in Saudi Arabia, South Korea, Turkey and Spain.

The group has come up with a simple workaround to circumvent censorship via website blockages. It publishes copycat websites with the same information as the blocked sites. If the government catches wind of the copycat site and blocks it, then Women on Web just creates a new one, like a whack-a-mole for digital abortion medication clearinghouses. Executive Director Venny Ala-Siurua says the labor is time-consuming but has allowed the organization to evade censorship attempts in these countries.

While this approach has helped Women on Web stay online in countries that have sought to shut them down, it’s unclear if U.S. counterparts like Plan C would ever need to employ such a strategy. Legal scholars and experts point out that both the South Carolina proposed law and the Texas bill are likely to face uphill battles in court because of the First Amendment. Emma Llansó, the director of the Center for Democracy and Technology’s Free Expression Project, says the Texas bill also is unlikely to survive constitutional scrutiny because of its especially broad mandate requiring internet service providers to implement website blockages — provisions that courts have struck down as unconstitutional in past legislative attempts.

Still, efforts to pass these kinds of laws could suppress constitutionally protected speech by making people, companies and organizations afraid to provide information online about abortion access.

“I think part of what’s concerning about these bills, even if they don’t ultimately pass, or they pass and get struck down, they’re a clear message from parts of the state government that they want to be able to go after anybody who is helping people get access to information about reproductive health care,” Llansó said. “And that pressure and implicit threat is part of what can create the chilling effect on online intermediaries from enabling access to that information.”