Since the reversal, Roe vs. Wadethe availability of pills that can induce abortion means anti-choice states have a hard time enforcing abortion bans. Abortion opponents have unsuccessfully tried to limit access to the drug by pressuring the Trump administration to impose new federal restrictions, suing state health care providers that protect reproductive rights, and challenging Food and Drug Administration rules that allow doctors to sell abortion pills by mail. This week, the U.S. Supreme Court temporarily restored access to mifepristone, one of the drugs used in medication abortions, after the U.S. Court of Appeals for the Fifth Circuit blocked an FDA rule that allowed online prescribing of mifepristone. The court is expected to address this issue further in the coming weeks.
Against this backdrop, legal battles have expanded beyond the abortion regulations themselves to include speech about abortion. These cases, filed in multiple states, raise important questions about the scope of the First Amendment and how courts resolve conflicts between state laws. These cases show how destroying abortion rights has a huge impact on free speech.
Aim for planned parenting
Eliminating the family planning system has been a long-standing goal of abortion opponents. Two new state cases attack the family planning system sayraising questions about the extent to which abortion-related speech is constitutionally protected. Specifically, the lawsuit targets family planning organizations’ statements regarding the safety of mifepristone, which is used in more than half of abortions.
The first case began in 2025 when then-Missouri Attorney General Andrew Bailey sued Planned Parenthood under the Missouri Commodity Exchange Act, a consumer protection law that prohibits practices such as deception, fraud, false promises, misrepresentations, and omissions of material fact in the sale or advertising of products. The state of Missouri alleges that a page featuring information about abortion pill safety misleads consumers by stating that mifepristone is “safer than many other drugs, including penicillin, Tylenol, and Viagra.” The state of Missouri claims that while Tylenol is safe unless the patient overdoses, mifepristone use causes 4.6% of cases to end up in the emergency room. The state is seeking up to $1,000 for each woman the family planning organization prescribed abortion pills to, plus more than $2 million in civil damages and penalties.
Florida Attorney General Brad Usmeyer also filed a lawsuit based on family planning organizations’ statements regarding the relative safety of mifepristone. Florida’s claims are even more ambitious. The state claims the organization’s statements about Tylenol violate the Florida Organizer Influenced and Corrupt Organizations Act, the state’s equivalent of RICO law, which is most often applied in cases involving organized crime. Florida gives great weight to research by abortion opponents in arguing that Planned Parenthood’s statements are false or misleading. That includes a study produced in 2025 by the Center for Ethics and Public Policy, a think tank whose priority is to “build consensus among conservatives while opposing extreme progressive policies.” Their study found that nearly 11 percent of women experienced serious adverse events after taking mifepristone. This conclusion contradicts the opinion of groups such as the American College of Obstetricians and Gynecologists and hundreds of published studies that show less than 0.5 percent of patients experience such events. The state is seeking more than $300 million in damages from Planned Parenthood.
Planned Parenthood claims their statements are true. And indeed, decades of research have established mifepristone’s safety profile with a very low risk of complications.
In addition to the controversy over the truth of the statements, there is also the question of what kind of speech is at issue in this case. Planned Parenthood’s website positions its statement as public health information and part of its broader sex education efforts (according to its website, Planned Parenthood is the nation’s largest provider of sex education). While nonprofit public health speech generally enjoys strong First Amendment protections, including strict oversight of government actions that subject speech to regulation based on content or views expressed, restrictions on commercial speech are assessed to a lower standard of oversight. It could be argued that Florida and Missouri are taking up family planning programs because of the content of their educational speeches (focusing on abortion) or their viewpoints (supporting abortion rights). Such a conclusion would likely make states’ attacks on family planning speech a violation of the First Amendment.
Florida and Missouri have instead proposed that the case involves commercial speech. For example, Missouri alleges that Planned Parenthood crosses the line from education to advertising by soliciting Missourians who visit its website to make appointments with local affiliates and by disseminating statements about the safety of mifepristone through the media, press releases, and other public forums. Missouri and Florida argue that false and misleading commercial speech is not constitutionally protected. Furthermore, they point out that even true and non-misleading commercial speech is less protected than other forms of expression. The U.S. Supreme Court has explained that such speech may be regulated as long as the government has a vital interest, the regulation directly and materially advances that interest, and the regulation is narrowly tailored to achieve that purpose.
Attorneys general want to turn the case into a referendum on the safety of abortion pills. Even if it cannot conclusively prove that the family planning organization’s speech was false or misleading, this case could change the state’s attitude toward, and even the regulation of, mifepristone. Conflicting streams of information about the drug could create pressure on politicians to limit its availability and confuse a public that already seems uncertain whether mifepristone is safe.
Unprotected criminal speech?
A recently settled case in South Dakota focused on a related and critically important issue: whether the state can criminalize and punish speech about abortion.
Mayday Health, a New York-based reproductive health education nonprofit, ran ads at gas stations in South Dakota that read, “Are you pregnant? Don’t want to be pregnant?” Direct users to Mayday’s website. In December 2025, South Dakota Attorney General Marty Jackley sent Mayday a cease-and-desist letter, alleging that Mayday violated the state’s Deceptive Practices and Consumer Protection Act. Mr. Jackley based his claim on the allegation that Mayday deceived consumers into believing that abortion pills were legal under state law.
Mr. Jackley asked a state court to halt the ad campaign, but Mr. Mayday filed a federal lawsuit in New York District Court, arguing that his speech was protected by the First Amendment. In early February, the district court issued an oral judgment denying Mayday’s request for an injunction based on the following doctrine: young Abstention generally prohibits federal courts from interfering with pending state enforcement proceedings. At the time, it appeared that the South Dakota state court would have to resolve the First Amendment issues in this case.
Mayday argued that its speech was protected because it was legal, true and political. Mayday stressed that the company does not sell abortion pills and does not accept payments from sellers. Instead, the organization provided information on how to obtain abortion pills because of its deeply held beliefs in reproductive rights, Mayday argued. In other words, Mayday argued that it engaged in political advocacy, the most protected form of speech, and that any burden on that speech must withstand rigorous scrutiny, the most rigorous form of judicial review.
Jackley responded that Mayday had made a misleading commercial speech. He reasoned that Mayday’s speech was commercial because Mayday provided details about the pricing and availability of products sold by third parties and because Mayday raised money based on its advocacy for reproductive health education. Jackley then suggested that the speech was misleading because it falsely implied that abortion was legal in South Dakota.
Here, the case departed from the commercial speech issues at issue in the Missouri and Florida cases. The parties also disputed whether Mayday engaged in unprotected criminal speech. The U.S. Supreme Court has clarified that the First Amendment does not protect speech “essential to a criminal act.” Jackley argued that Mayday’s speech was unprotected criminal speech because it encouraged patients and health care workers to violate state criminal laws regarding abortion. Mayday responded that it does not encourage anyone to make a different decision. It merely provided information. And even if a court interprets a website as promoting abortion, existing case law suggests that speech that could encourage the idea of committing a future crime is not enough to eliminate protections for otherwise protected speech, Mayday said.
Finally, Mayday questioned how Jackley defines the conduct in question as a crime, given the conflicting state laws regarding abortion. South Dakota criminalizes abortion, but Mayday’s state, New York, protects reproductive rights. Given these conflicts of law, which state laws should courts consider when determining whether speech promotes a crime?
Mayday ultimately settled the lawsuit and agreed to stop disseminating information related to the pending abortions in the state.
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The outcome of litigation regarding abortion and speech could impact access to reproductive health care by limiting the available information about abortion. But more fundamentally, these cases will shape the national conversation about abortion, including the safety of mifepristone. As the May Day case shows, the very act of filing such a lawsuit can chill the discourse on abortion, and the effects can spill over to other issues. If the court were to rule that the provision of information about abortion is not constitutionally protected, the chilling effects would be enormous.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law.
Recommended Citation: Mary Ziegler, Anti-choice state targets organizations that provide information about abortionSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 7, 2026), https://statecourtreport.org/our-work/analysis-opinion/anti-choice-states-target-organizations-providing-information-about
