Nonprofits, Abortion Pill Reversal, and Commercial Speech

This morning, after getting one child off to school and before I had to wake the second up, I was scrolling through Bluesky and I came across this skeet from Rebecca Tushnet. It piqued my interest, so I went over to her blog post describing a district court order denying two nonprofits’ motion for a preliminary injunction. Intrigued even more, I decided to read the order and blog it.

In the suit, two anti-abortion nonprofits (the National Institute of Family and Life Advocates and SCV Pregnancy Resource Center). The plaintiffs worried about the Attorney General’s enforcement actions against what the order terms “abortion pill reversal,” an unproven treatment that claims to reverse the effects of chemical abortion.

As best as I can tell, neither nonprofit organization offers abortion pill reversal. They appear, though, to advertise it, or at least, to want to advertise it. They argued that the Attorney General’s enforcement efforts chilled their constitutionally-protected right to advertise this abortion pill reversal.

And this is where their nonprofit status (briefly) comes in. As a quick primer for those of us who don’t focus on First Amendment speech issues: while ass speech is protected, some speech gets less protection than other speech. While much regulation of speech must meet the strict scrutiny standard, commercial speech is only subject to intermediate scrutiny. Thus, the government can prohibit speech that is “inherently misleading.”

In the organizations’ complaint (paragraph 368), the organizations assert that “[a]s religious nonprofits, Plaintiffs’ speech about progesterone treatment services is not commercial speech.” And if it’s not commercial speech, government infringement does not get the advantageous intermediate scrutiny.

Judge Vera doesn’t buy it. He doesn’t spend a lot of time on it, but he writes that their advertising (or potentially advertising) abortion pill reversal “constitutes commercial speech because, at its core, it involves advertisements for medical services for which Plaintiffs maintain an economic incentive despite their nonprofit status.” Their nonprofit status doesn’t insulate their speech from being commercial, and it does not, of itself, prevent the Attorney General from forbidding their commercial speech if it is misleading.

Earlier this month the plaintiffs filed a notice of appeal with the Ninth Circuit. So there may be more discussion of whether and how nonprofit speech is (or, I guess, is not) commercial speech.

Samuel D. Brunson  

Photo by Markus Winkler on Unsplash