This bill is written so broadly that even the top lawyer at the *National Right to Life Committee* thinks they should rein it in a little.

Taken at face value, it would make it a felony potentially punishable by up to 25 years in prison to provide a pregnant woman with “information” about “the means to obtain an abortion.” If you live in a blue state and you text your pregnant friend in South Carolina that there’s a clinic in your neighborhood that performs abortions, does that mean you’re facing hard time in SC if you ever visit her?

Could you be extradited from your state if South Carolina police find out about the text?

(B) The prohibition against aiding and abetting a violation of Section 44-41-830 includes, but is not limited to knowingly and intentionally:

(1) providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion;

(2) hosting or maintaining an internet website, providing access to an internet website, or providing an internet service purposefully directed to a pregnant woman who is a resident of this State that provides information on how to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used for an abortion;…

(4) providing a referral to an abortion provider, knowing that the referral will result, or is reasonably likely to result, in an abortion

The paradigm case they have in mind here, I assume, is when one South Carolina resident tells another via electronic communication how to obtain abortifacients like mifepristone and misoprostol on the black market locally. Essentially the law is treating that as solicitation to commit murder: If you were looking to hire a hit man to kill your spouse and you asked a trusted friend to find someone who’d do the job, presumably that friend would be guilty of conspiracy. Same deal here.

But what if your friend tells you how to obtain an abortion in a state where it’s legal, either by referring you to a clinic there or to instructions on how to acquire abortifacient drugs after crossing state lines? Is every website on the Internet with information about local abortion providers now a criminal offense in South Carolina? Or is it just websites that are hosted in South Carolina? What about a website that’s hosted there but offers instructions only on how to get legal abortions out of state, not black-market abortions in the state?

You can see how quickly this will get complicated for the courts. It’s not the sort of thing Newt Gingrich had in mind, I take it, when he encouraged the GOP to listen closely to the concerns of voters who don’t normally vote Republicans but are considering doing so this year.

The goal of this law, plainly, is to spook pro-choicers and their Internet service providers into erring on the side of silence at a moment of great legal uncertainty. If enacted, the South Carolina bill would probably violate the First Amendment but no liberal wants to bet too heavily on Brett Kavanaugh or Amy Coney Barrett coming through for them when the country is just a month removed from Roe being overturned. The “chilling effect” potential here is real and spectacular, which is why counsel for the NRLC prefers to narrow the bill. The more broadly it seeks to criminalize speech, the more likely it is to be thrown out of court.

For the NRLC, which wrote the model legislation, limiting communication is a key part of the strategy to aggressively enforce laws restricting abortion. “The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity,” Jim Bopp, the group’s general counsel, wrote in a July 4 memo, comparing the group’s efforts to fighting organized crime.

In an interview with The Washington Post, Bopp said that the group has refined its blueprint for states since the South Carolina bill was introduced last month. The restrictions on websites and internet hosts in the July model bill language would only apply when the information is likely to be used “for an unlawful abortion in this state,” he said, not abortions generally, as the South Carolina bill says…

“The legal ambiguity works in favor of regulators,” [law professor Eric] Goldman said. “They can suppress a lot of constitutionally protected speech just because of fear of liability.”

Jonathan Turley thinks the bill as written is unconstitutional, comparing it to laws that ban instructions on how to commit suicide effectively and noting that even the federal government would technically run afoul of the text. Certainly, if abortion is illegal in South Carolina, the state can take steps to prohibit a conspiracy to provide an abortion within its own jurisdiction. But to prove conspiracy a prosecutor typically needs to show that the defendant took an “overt act” to further the conspiracy beyond mere words that he or she spoke. That being so, if a South Carolina resident posts a public webpage with detailed instructions on how to self-induce an abortion, and then someone reads the webpage and uses the information to abort, is that a conspiracy? Or is it just free speech, however foul?

Can you “conspire” with someone you’ve never met, whose existence you’re unaware of?

Given the potential interstate repercussions of states trying to regulate electronic communications that originate elsewhere, this might be an opportune time for Congress to step in and clarify. Dems don’t have the votes to get anything through, though; they’ve been working on a bill that would boost protections for online personal data so that prosecutors in pro-life states can’t use it to build cases against abortionists and their abetters but that’s likely to stall out in the Senate. It’ll be up to Kavanaugh and Barrett eventually to decide whether a South Carolina website can properly be criminalized for providing info on abortions in South Carolina. Stay tuned.