The Free Speech Fight at the Heart of Indiana’s Abortion Showdown

The battle over abortion rights in blue states has taken a new turn with a lawsuit against Planned Parenthood in Indiana. But this case isn’t about telemedicine or access restrictions; it’s about whether red states can use their laws to silence speech about something they deem unconstitutional.

At the center of the controversy is Indiana’s 2017 law, which makes it a crime to aid or assist a minor in seeking an abortion without parental consent or using the judicial bypass procedure. Planned Parenthood sued, arguing that the law infringes on its First Amendment rights by punishing speech related to out-of-state abortions. The 7th Circuit agreed, ruling that Indiana can’t regulate speech about something that’s legal and protected in other states.

Indiana wasn’t alone in passing such laws; South Dakota has restricted abortion-related advertising, while Florida and Missouri have launched investigations into Planned Parenthood’s marketing materials. Conservative attorneys general and lawmakers see this as a battle not just over abortion access but also over who gets to control the narrative.

The Supreme Court has so far remained out of this fray, but that’s about to change. With Roe v. Wade overturned, the conflict between blue and red states is set to escalate after the midterms, when Republican policymakers won’t have to worry about public opinion. The stakes are high: if conservatives succeed in silencing speech about abortion, they’ll not only be limiting access to reproductive healthcare but also undermining a fundamental right essential to democratic discourse.

Indiana’s defense of its law has been creative, but ultimately unconvincing. It argued that speech isn’t protected when it’s integral to a crime – in this case, facilitating an abortion in another state. However, Planned Parenthood pointed out the obvious flaw: while robbery and murder are indeed crimes everywhere, abortion is constitutionally protected in many parts of the country. This means that Indiana’s law would force courts to navigate a complex web of conflicts-of-law rules, trying to determine which state’s laws apply when a clash arises.

The 7th Circuit got it right – for now – but the Supreme Court may not be so obliging. Red states will argue that their laws protect both the pregnant patient and her fetus, and that speech related to abortion should be regulated accordingly. Even if they lose on this point, conservatives have a backup plan: redefining abortion-related speech as mere conduct, rather than protected expression.

This case is just the latest example of federal courts being pulled into interstate conflicts over abortion. Judges have generally agreed with the 7th Circuit that red states can’t criminalize speech about something blue states protect, but it’s only a matter of time before the Supreme Court weighs in. When it does, we’ll see how committed America is to free speech – and whether that commitment will extend to the most contentious issues of all.

In reality, this isn’t just a fight about abortion rights; it’s also a test of our democracy’s capacity for self-expression. If conservatives succeed in silencing speech about abortion, they won’t be limiting access to reproductive healthcare alone – they’ll also be undermining a fundamental right that’s essential to American life itself.