Looming threats to press freedom in post-Roe America

When the United States Supreme Court reversed Roe vs. Wade, the 1973 ruling that recognized a constitutional right to terminate a pregnancy, it simultaneously created a mad quilt of laws where abortion is legal in some states but not others, and engaged the media to report on vital consequences of his decision. The interplay between these two dynamics will likely result in challenges to freedom of the press – some unintended or unforeseen, but with at least three likely clashes worth noting.

Consider first the case of Oregon and Idaho. Next Dobbs v. Jackson Women’s Health Organizationthe case that overturned deer, Oregon state law will continue to allow abortion. Idaho, however, has a “trigger law that, 30 days after Dobbs becomes final, prohibits virtually all abortions with exceptions only for rape, incest and to save the life of the mother. (It also has a law allowing relatives to sue abortion providers who provide or attempt to provide abortion services after about five or six weeks.) In April, news outlets in both States published about a Planned Parenthood decision to secure medical office space in Ontario, Oregon, a border town along the Snake River and accessible from I-84. These stories have informed Idahoans that abortions can be legally performed just across the state line, 56 miles from Boise.

Pre-deerthe Virginia Weekly, a Charlottesville newspaper, ran an ad from Women’s Pavilion, a New York-based abortion referral agency, noting that abortions were legal in the latter city and offering “immediate placement in approved hospitals and clinics Low cost”. Authorities successfully prosecuted the newspaper’s editor under a Virginia law that made it a crime to encourage or induce someone to have an abortion. The publisher, who argued that the prosecution violated his First Amendment rights, appealed and the case made its way through the courts. It eventually ended up in the United States Supreme Court where, in Bigelow v. Virginiathe judges overturned the publisher’s conviction, finding that because the practice was legal in New York City and abortion loomed large in public debate at the time, the First Amendment protected the ad.

Currently, the National Committee for the Right to Life’s model anti-abortion law contains a provision similar to that at issue in Bigelow. The NRLC Act, on its face, would apply to Virginia Weekly and, for an aggressive prosecutor, at an Idaho outlet reporting that a quick trip to Ontario, Oregon, could provide access to a legal abortion. States with similar “aiding and abetting” laws could see them used against journalists and news outlets that report on abortion access in other states.

Here is the second likely challenge for the post-pressDobbs. We are already beginning to see stories based on confidential sources who, due to uncertainty arising from the new patchwork of state laws, requested a medical abortion using pills obtained online. We will see many more.

If it is illegal under state law, we may consider it an “invisible” violation: the patient will not report it, nor the provider, or the helping relative, friend, or partner. In a state that prohibits the practice of medical abortions – and especially in a state that criminalizes them – the most obvious route to solving the case will be the journalist with these confidential sources. (This is especially true if the state is trying to regulate patients who travel out of state for an abortion and the only enforcement option is against returning patients.) Branzburg vs. Hayes-a founding first amendment Case from the 1970s stemming from the nascent “War on Drugs,” where prosecutors tried to force a journalist to disclose his sources for an article about drug traffickers — that’s exactly what happened.

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Finally, journalists with confidential sources will be much richer repositories of valuable evidence for prosecutors and plaintiffs seeking to enforce abortion bans than they were 50 years ago, beforedeer. Today, we all have in our pockets what for the investigators in 1973 would have been supercomputers. They track what you say, where you go, when you go, and who you interact with. These digital breadcrumbs will be irresistible to investigators and prosecutors facing intense political pressure to crack down on abortion services.

In many ways, collecting information about post-abortionDobbs will look like reporting on things like military secrets, narcotics, public corruption, corporate malfeasance, or any other beat where promising one-source confidentiality is needed to tell the story. These beatings lead to violations of the freedom of the press. We shouldn’t be surprised when we see them.

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Gabe Rottman is a lawyer and Director of the Technology and Press Freedom Project at the Journalists Committee for Press Freedom.

TOP IMAGE: Anthony Behar via AP Images

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