Anti-Choice States Target Organizations Providing Information About Abortion 

Since the reversal of Roe v. Wade, the availability of pills that can induce abortion has meant anti-choice states struggle to enforce abortion bans. Abortion foes have tried — unsuccessfully — to limit access to this medication, including by pressuring the Trump administration to impose new federal limits, suing providers in states that protect reproductive rights, and challenging Food and Drug Administration (FDA) rules that allow doctors to dispense abortion pills through the mail. This week, the U.S. Supreme Court temporarily restored access to mifepristone, one of drugs used in medication abortion, after the U.S. Court of Appeals for the Fifth Circuit blocked an FDA rule allowing it to be prescribed online. The Court is expected to further address the matter in the coming weeks.

Against this backdrop, legal battles have expanded beyond the provision of abortion itself to speech about abortion. These cases, filed in several states, raise important questions about the scope of the First Amendment and the way that courts resolve conflicts between state laws. These cases demonstrate how the destruction of abortion rights could have a powerful impact on freedom of speech.

Targeting Planned Parenthood

Taking down Planned Parenthood has long been a goal of abortion opponents. Two new state cases attack what Planned Parenthood says, raising questions about the scope of constitutional protection for abortion-related speech. Specifically, the suits target Planned Parenthood’s statements about the safety of mifepristone, which is used in more than half of all abortions.

The first case began in 2025 when then-Missouri Attorney General Andrew Bailey sued Planned Parenthood under the Missouri Merchandising Practices Act, a consumer protection statute that prohibits conduct including deception, fraud, false promises, misrepresentation, and the omission of material facts in the sale or advertisement of goods. Missouri claims that statements appearing on an page devoted to information about the safety of the abortion pill, which note that mifepristone is “safer than many other medicines like penicillin, Tylenol, and Viagra,” mislead consumers. Missouri asserts that Tylenol is safe unless a patient overdoses, whereas mifepristone usage leads to an emergency room visit in 4.6 percent of cases. The state seeks what could be more than $2 million in civil damages and penalties, along with up to $1,000 per woman to whom Planned Parenthood prescribed abortion pills.

Florida’s attorney general, Brad Uthmeier, has also filed a lawsuit based on Planned Parenthood’s statements about the relative safety of mifepristone. Florida’s claims are even more ambitious. The state argues that the organization’s statements about Tylenol violated the Florida Racketeer Influenced and Corrupt Organization Act, the state’s RICO Act equivalent, which is most often used in cases involving organized crime. In making the case that Planned Parenthood’s statements are false or misleading, Florida assigns great importance to studies by abortion foes, including one produced in 2025 by the Ethics and Public Policy Center, a think tank that identifies as a priority “pushing back against the extreme progressive agenda while building a consensus for conservatives.” Their study found that nearly 11 percent of women experienced serious adverse events after taking mifepristone — a conclusion that contradicts the views of organizations like the American Obstetricians and Gynecologists and hundreds of published studies, which indicate that less than .5 percent of patients experienced such events. The state seeks more than $300 million in damages from Planned Parenthood.

Planned Parenthood argues that their statements are true. And indeed, decades of studies have established the safety profile of mifepristone, which has a very low risk of complications.

Beyond the dispute over the truth of the statements, there is the question of which kind of speech is at issue in the cases. Planned Parenthood’s website frames its statements as public health information, part of its broader sex education efforts (per its website, Planned Parenthood is the nation’s largest provider of sex education). Non-commercial public health-related speech generally enjoys robust First Amendment protections — including the application of strict scrutiny for government action that targets speech for regulation based on its content or the viewpoint expressed — while restrictions on commercial speech are evaluated under a lower standard of scrutiny. It’s possible to argue that Florida and Missouri are singling out Planned Parenthood because of the content of that educational speech (a focus on abortion) or its viewpoint (which is supportive of abortion rights). Such a conclusion would render the states’ attacks on Planned Parenthood’s speech presumptively violative of the First Amendment.

Florida and Missouri suggest instead that the cases involve commercial speech. Missouri, for example, claims that Planned Parenthood has crossed the line from education into advertising by soliciting Missouri residents who visit the website to make appointments at local affiliates and disseminating statements about mifepristone safety through the media, press releases, and other public fora. False and misleading commercial speech, Missouri and Florida say, enjoys no constitutional protection. What is more, even truthful, non-misleading commercial speech is less protected than other forms of expression, they point out. The U.S. Supreme Court has explained that such speech may be regulated so long as the government has a substantial interest, the regulation directly and substantially advances that interest, and the regulation is narrowly tailored to achieve that aim.

The attorneys general hope to transform the cases into referenda on the safety of abortion medication: Even if they do not definitively establish that Planned Parenthood’s speech is false or misleading, the cases could change national attitudes toward and even regulations of mifepristone. The flow of contradictory information about the drug can create pressure on politicians to seek to limit its availability and can confuse the public, which already seems unsure about whether mifepristone is safe.

Unprotected Criminal Speech?

Recently settled litigation in South Dakota focused on a related and critically important issue: whether states can punish speech about abortion by deeming it criminal.

Mayday Health, a reproductive health education nonprofit based in New York, had been running advertisements at gas stations in South Dakota stating, “Pregnant? Don’t Want to Be?” and directing users to the Mayday website. In December 2025, Marty Jackley, the South Dakota attorney general, sent a cease-and-desist letter, contending that Mayday had violated the state’s Deceptive Practices and Consumer Protection Act. Jackley based this assertion on the claim that Mayday deceived consumers into believing that abortion pills were legal under state law.

While Jackley sought an order from a state court to stop the ad campaign, Mayday filed a federal lawsuit in New York district court, arguing that its speech was protected by the First Amendment. In early February, the district court issued an oral ruling declining to grant Mayday’s request for an injunction based on a doctrine called Younger abstention, which generally bars federal courts from interfering with pending state enforcement proceedings. It appeared at the time that a South Dakota state court would have to resolve the First Amendment questions in the case.

Mayday argued that its speech was protected because it was legal, truthful, and political. Mayday stressed that it neither sold abortion medication nor received payment from those who do. Instead, Mayday argued, the group provided information about how to access abortion medication because of its own deeply held beliefs about reproductive rights. In other words, Mayday asserted, it engaged in the most protected form of speech — political advocacy — and any burdens on that speech must survive strict scrutiny, the most stringent form of judicial review.

Jackley responded that Mayday engaged in misleading commercial speech. He reasoned that Mayday’s speech was commercial because Mayday provided details about the price and availability of products sold by third parties and because Mayday fundraised based on its advocacy for reproductive health education. And that speech was misleading, Jackley suggested, because it falsely implied that abortion is legal in South Dakota.

This is where the case departed from the questions about commercial speech at issue in the Missouri and Florida cases: The parties also fought about whether Mayday engaged in unprotected criminal speech. The U.S. Supreme Court has clarified that the First Amendment does not protect speech that is “integral to criminal conduct.” Jackley argued that Mayday’s speech was unprotected criminal speech because it encouraged patients and providers to violate the state’s criminal law on abortion. Mayday responded that it did not encourage anyone to make one decision over another; it simply offered information. And even if a court construed its website as encouraging abortion, Mayday said, existing case law suggests that speech that might encourage thoughts of committing a future crime is not enough to eliminate protection for otherwise protected speech.

Finally, Mayday questioned how Jackley defined the conduct at issue as criminal given clashing state laws on abortion. South Dakota criminalizes abortion, but New York, where Mayday is located, protects reproductive rights. Given these conflicts of law, which state’s law should a court consider when deciding whether speech facilitates a crime?

Mayday ultimately agreed to settle the cases and stop disseminating the disputed abortion-related information in the state.

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The outcome of cases about abortion and speech could impact access to reproductive care by limiting the availability of information about abortion. But even more fundamentally, these cases will shape national conversations about abortion, including about the safety of mifepristone. As the Mayday litigation illustrates, the very filing of such lawsuits could chill speech about abortion — and the effects could spill over to other contested questions. If courts find that providing information about abortion isn’t constitutionally protected, that chilling impact will be immeasurably magnified.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. 

Suggested Citation: Mary Ziegler, Anti-Choice States Target Organizations Providing Information About Abortion, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 7, 2026), https://statecourtreport.org/our-work/analysis-opinion/anti-choice-states-target-organizations-providing-information-about