By Gail Deady, The Secular Society Women’s Rights Legal Fellow, and Kathy Greenier, Reproductive Freedom Project Director
Today is the 40th anniversary of Bigelow v. Virginia, a landmark ACLU case in which the Supreme Court of the United States first ruled that some types of advertisements—including advertisements for abortion services—are protected by the First Amendment’s guarantees of freedom of expression and freedom of the press. Bigelow, however, is not just about free speech. It was the first in a long line of Supreme Court cases dealing with states’ attempts to restrict women’s access to abortion services.
In 1971, abortion was still illegal in most states. Virginia not only banned abortion, but had also made it a crime to encourage abortion through lectures, publications, or advertisements. Enter Jeffrey Bigelow, the then-editor of The Virginia Weekly, a newspaper in Charlottesville, Virginia. The Weekly ran an advertisement for an abortion referral service in New York City that informed readers that abortion was legal in New York, and there was no residency requirement to get an abortion. After publishing the ad, Mr. Bigelow was arrested and then convicted for encouraging abortion through a publication.
Before the internet, GPS, and smartphones, people looked to just a few sources to find information about the services they needed. Without advertisements in newspapers, magazines, or the phone book, it would have been nearly impossible for a woman to locate the address and phone number of an abortion provider—especially one located in another state. Virginia’s ban on abortion advertisements effectively denied women the information they needed to access safe, legal abortion services.
By the time Bigelow v. Virginia reached the Supreme Court in 1975, abortion was legal throughout the United States. Virginia nevertheless argued it could prohibit people from advertising abortion services because advertisements were “purely commercial speech,” meaning the only information they conveyed was about a commercial transaction—the exchange of money for goods or services. Therefore, a state could regulate an advertisement without violating the First Amendment—particularly if it related to medical services, such as abortion. The Court disagreed—it held the abortion ad was entitled to First Amendment protection because it did more than propose a commercial transaction. By publishing an advertisement informing women in Virginia that they could obtain a legal abortion in New York, Bigelow was exercising his First Amendment rights to communicate information and share opinions about a subject of public interest and debate: abortion. Further, as Roe v. Wade made abortion a constitutionally protected right in 1973, abortion ads also deserved First Amendment protection because they provided information about a constitutional right. As such, the Court held Virginia’s statute was unconstitutional and reversed Mr. Bigelow’s conviction.
Bigelow laid the foundation for other important cases in the late 1970s in which the Court increased women’s access to reproductive health services by extending First Amendment protection to advertisements for contraceptives. Between 1973 and 1992 the Court rejected dozens of state efforts to limit access to abortion, but the tide began to turn as the Court’s make-up shifted. In 1979, the Court held in Bellotti v. Baird that teens must involve a parent or go to court prior to getting an abortion. A year later, the Court upheld the Hyde Amendment - the federal government’s ban on government funding of abortion for poor women. And, in Casey v. Planned Parenthood (1992), the Court scaled back the constitutional protection for abortion by making it easier for states to restrict women’s access to abortion services through the use of mandatory waiting periods and other restrictions that made it difficult for women—and low income women in particular—to access safe, legal abortion services.
This struggle continues today (check out this timeline of all the laws restricting women’s health care in Virginia). Virginia, as well as several other states, have passed laws aimed at forcing abortion providers to close their doors. As we’ve seen in Texas, its residents now face laws that will force most, if not all, abortion providers to close their doors, leaving millions of women without access to safe, legal abortion services. Understanding the history of attacks on women’s health helps us see why we must be vigilant in protecting women’s health today.
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Virginia Needs a Second Look Law Now.