Pro-life organization wins First Amendment injunction against State of New York

An anti-abortion organization sued the State of New York to prevent the Attorney General from proceeding against groups who wish to speak out against the use of abortion pills. The state has gone after similar groups who publicly criticized the abortion pills, claiming these public statements violate the state's anti-fraud laws. The plaintiffs in this case do not want similar enforcement actions against them. Hence, this First Amendment lawsuit claiming their speech is protected under the Constitution and cannot be the subject of the state's fraud lawsuits. The plaintiffs win.

The case is National Institution of Family and Life Advocates v. James, issued on December 1. The other anti-abortion groups said on websites and elsewhere that the abortion pill has serious health consequences for women. But the State of New York sued them under the General Business Law on the basis that these public statements misrepresented the efficacy and safety of abortion pill reversal drugs, also known as APR. 

The district court held, and the Court of Appeals (Bianco, Nathan and Lee) agrees, that the plaintiffs' speech in this case is protected under the First Amendment as noncommercial speech, and the state is unable to advance a compelling reason to restrict speech like this. The content-based speech restrictions that the state has pursued against other anti-abortion organizations, the Second Circuit says, is not commercial speech, which carries fewer constitutional protections than political, moral, or religious speech. The informational speech advocated by plaintiffs does not propose a commercial transaction and instead covers their anti-abortion, moral and religious advocacy, as well as womens' health concerns. "To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services," the Court writes. 

Once the Court of Appeals finds the plaintiffs here will prevail on the merits of their constitutional challenge, the remaining elements of their preliminary injunction application are less complicated. The loss of constitutional freedoms constitutes irreparable harm. Such harm is not speculative here, as the state has gone after similar organizations for the speech that plaintiffs want to express in this case.