Texas Republicans Try to Break the Internet to Deny Women Abortions
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There is more than one way to burn a book, Ray Bradbury wrote, and the world is full of people running about with lit matches. Texas House Rep. Steve Toth brandished the equivalent of a butane torch earlier this session when he introduced House Bill 2690, legislation that seeks to ban websites that contain information about abortion — but he and Texas Republicans may find it’s harder than they think to make speech they don’t like disappear from the internet.
Toth’s bill would make it illegal to “create, edit, upload, publish, host, maintain, or register a domain name for an internet website, platform, or other interactive computer service that assists or facilitates a person’s effort in obtaining an abortion-inducing drug.” Internet service providers themselves would be in the awkward position of enforcing the law by making “every reasonable and technologically feasible effort” to block sites with information about abortion, abortion providers, or abortion funds — keeping Texans in the dark about their health care options, essentially.
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The legislation names several websites specifically: Aid Access, Plan C, Hey Jane, and CaraFem, among them. The only way to scrub such sites from Texas’ internet is for individual ISPs to agree to block them inside the state’s borders. To achieve that goal, the bill also establishes incentives for private citizens to sue internet service providers that fail to block the sites. (Rolling Stone reached out to a number of internet service providers operating in Texas, including AT&T, EarthLink, Charter Communications/Spectrum, T-Mobile, Windstream, Viasat, and HughesNet. None responded to inquiries about the legislation and whether they will oppose it.)
Even if internet service providers choose to comply, it will be logistically difficult to prevent individuals from accessing information they’re determined to find, says Hey Jane founder Kiki Freedman. “We do think that the technical feasibility of the bill is somewhat laughable,” says Freedman, who was an executive at Uber before starting the company, which ships abortion medication to a number of states. There are well-known tools like VPNs, for example, that allow internet users to mask their IP address and location in order to access content that might not be available in their areas.
In addition to being a logistical challenge, the proposed law is “a total train wreck under the First Amendment,” Brian Hauss, staff attorney with the ACLU Speech, Privacy, and Technology Project, tells Rolling Stone. “The whole point of the First Amendment is to prevent the government from censoring ideas or information because it disagrees with the view that’s expressed — and that’s exactly what this law is trying to do.”
Hauss pointed to a landmark Supreme Court case, Bigelow v. Virginia, with parallels to the proposed Texas law. Before Roe v. Wade, abortion was illegal in Virginia, as was “encouraging” abortion through, for example, advertisements about services in states where the procedure was legal. In 1971, Jeffrey Bigelow, editor of Charlottesville’s Virginia Weekly, was arrested for running a display ad for an abortion referral service in New York. The case ultimately made it to the Supreme Court, where a majority of justices found that the advertisement qualified as protected speech.
“What the Supreme Court essentially said is: Virginia can’t prevent its residents from going to New York to obtain services that are lawful in New York.… The notion that a state can intentionally keep its residents ignorant about the availability of lawful services in other states was very decisively rejected by the Supreme Court in that decision,” Hauss explains.
Jennifer Pinsof, staff attorney at the Electronic Frontier Foundation, says the private-enforcement mechanism proposed in the bill is a tactic she hasn’t seen before. “There have been other efforts to create liability for posting abortion-related info online, but the ISP-blocking aspect is new and I haven’t seen any other bills that put pressure on ISPs to block access to certain websites,” Pinsof wrote in an email. “The result will be a chilling effect on speech and a looming threat of litigation that can be used to silence those who seek to give women truthful information about their reproductive options.”
Like Texas’ Senate Bill 8, the abortion-bounty law passed in 2021, House Bill 2690 would be enforced by private citizens, rather than the government — an effort to hamper a legal challenge to the law. (Opponents typically sue the agency charged with enforcing the law to stop its enforcement, but that is difficult if the law is meant to be enforced by citizens instead.) Toth recently proposed another bill — this one targeting drag artists — using the same bounty-hunter framework. But whether such laws will be allowed to stand remains a matter of debate: At least one state court judge has declared the private enforcement scheme unconstitutional.
“To me, the most disturbing part of it is just how extreme these legislatures are willing to go in terms of throwing out other fundamental rights in order to attack access to health care,” Freedman says. “The goalposts are clearly shifting towards a space that is even further disconnected from the opinion of health care experts, but also the will of their voters.” A majority of Texans oppose banning abortion, according to research done by the University of Texas, with a scant 15 percent of Texans supporting a complete ban on abortion access.
Toth dubbed his bill “The Women and Child Safety Act.” Not only is pregnancy far more dangerous than abortion — one study found women are 14 times more likely to die from childbirth than an abortion — unwanted pregnancies have also been proven to create unsafe conditions for the child. Multiple studies have found that children born from unwanted pregnancies are more likely to experience and witness domestic violence, and one 10-year study found that, for years after giving birth, women who sought and failed to terminate their pregnancies were struggling to cover basic living expenses like food, housing, and transportation, compared to similar women who were able to obtain an abortion.
Melissa Grant, the COO of Carafem, called the inclusion of her organization in Toth’s proposed bill “not particularly surprising,” in spite of the fact that Carafem does not provide services in Texas. House Bill 2690, she says, is “about continuing to push the boundaries of what’s legal, in a restrictive way, to try to shut down the availability of people to receive legal services.”
“It’s hard to believe that anyone would have the time or the effort to spend looking into things that seem so antithetical to [the principles] this country was founded on.… But if the ultimate impact is to try to get abortion providers distracted so that they’re fighting laws instead of serving patients, well, I suppose to some degree, they’re winning,” she says. “But our goal is to try to keep our eyes on the horizon and moving forward to help people who need us.”
Right now, she says, she is focusing on what she can do in Texas. “What I can do [in Texas] is continue to provide … accurate information about what abortion is and what it’s not, where it is illegal in this country to access it, and reliable evidence-based information about how abortion care works, and combat misinformation that is running wild.”
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