A new law in Texas would require internet service providers in the state to block sites that provide abortion information, and make it illegal to host or even offer domain registration to sites that help people in Texas obtain or pay for abortions.
The bill, introduced Feb. 23 by Representative Steve Toth, seeks to crush access to services that provide the pregnancy-termination drugs mifepristone and misoprostol, as well as relief funds that raise money to cover the cost of abortion-related expenses. Under the rules of the new bill, it would be illegal to “create, edit, upload, publish, host, maintain or register a domain name for any Internet website, platform or other interactive computer service that assists or facilitates anyone in obtaining an abortion-inducing drug.”
Some other provisions — such as rules against sending mifepristone or misoprostol for abortions — refer to transactions involving Texas residents, but that language is not directly present in the site ban, potentially leaving its scope ambiguous.
The bill covers efforts to “create, edit, upload, publish, host, maintain or register a domain name for” objectionable sites
Within Texas, the bill would require internet service providers to “make all reasonable and technologically feasible efforts” to block internet access to information “intended to assist or facilitate attempts to obtain an elective abortion or an abortion-inducing drug” . It specifically requires ISPs to block Aid Access, Hey Jane, Plan C, Choix, Just The Pill, and Carafem websites, all of which help direct visitors to places where they can access abortion pills. But it also requires blocking any site or app “operated by or on behalf of an abortion provider or abortion fund,” a category that could include organizations like Planned Parenthood as well as numerous grassroots fundraising sites. And it offers legal immunity from “denial of service” to people who aid or encourage abortion, and apparently encourages ISPs to kick users offline as well.
Like Texas’ infamous abortion ban, the bill relies on allowing citizens to bring civil lawsuits against services that violate the rules, a system described as a “bounty hunter” approach to the law. Unlike the abortion ban, it’s not clear how much appetite there is for pushing this through — but it’s part of a slew of state laws that could spell trouble for the internet.
This isn’t the first bill to target abortion access sites, but it may be the most detailed and restrictive effort to date. Despite caveats that this will not penalize individual pregnant people (which are also present in the Texas abortion ban), it is designed to make accessing resources for terminating a pregnancy as difficult as possible. Prosecutors in Texas had already gone after relief funds that helped pay for out-of-state abortions, but the groups were granted at least a temporary reprieve last week when a judge barred them from pursuing the cases.
Net neutrality rules are supposed to stop this, but the FCC can’t pass them
If it’s not clear, the bill is a nightmare both for free speech in general — despite a clause claiming it doesn’t apply to First Amendment-protected speech — and specifically for web infrastructure providers. Many sites including The edge, have written about getting self-managed abortions and linked to sites such as Plan C. This is not (so far) illegal, even in places where abortion is prohibited. The bill should also run into federal law that protects freedom of expression online: Section 230 also prohibits state lawsuits or criminal prosecution against web platforms for most illegal third-party content. And the ISP blocking provisions are supposed to violate net neutrality rules…but the Trump FCC has reversed those, and while President Biden called for them to be reinstated, his FCC has so far been defined by his repeated failure to get a fifth Commissioner who could break the current 2-2 partisan deadlock to get past them. Gigi Sohn, Biden’s proposed commissioner, has just come forward for confirmation for the third time after first being nominated more than 16 months ago.
More broadly, both Republican and Democratic lawmakers have focused on Section 230, and the Texas Fifth Circuit Court of Appeals is willing and eager to override federal law in favor of state-level speech rules. The Supreme Court, meanwhile, has proven hostile to abortion rights and its position on Article 230, despite some encouraging signs, remains unclear. And we’re still waiting for a Texas judge to decide whether the Comstock Act — a 150-year-old obscenity law — can be applied to ban the sending of mifepristone by mail.
The bill is also symbolic of the government’s new attempt to introduce internet censorship, while claiming that social media platforms pose an unprecedented threat to expression. Texas previously banned major internet platforms — possibly including Wikipedia — from suspending users based on their “point of view,” effectively making much internet moderation impossible. Against this backdrop, the new Texas law is not necessarily hypocritical. It simply illustrates the kind of internet that some (mainly Republican) lawmakers seem to want: one where individual companies cannot regulate their own platforms, but states can build a small-scale Great Firewall around their borders and open the door to punishing web services across the country.
Many extreme state laws don’t get passed, and this is more likely to be one of them – but against the current legal backdrop, the risks of ignoring them are also much higher than usual.