The Supreme Court’s decision allowing states to outlaw abortion is the latest stress test for major social media platforms already under fire for policies that have allowed fake news and hate speech to flourish online.
Less than a week since the court’s ruling, there have been multiple reports of Facebook and Instagram taking down posts in which people offer to purchase, mail or share abortion pills. That’s in line with policies set forth by Facebook and Instagram’s parent, Meta, that bar the sale, purchase or trade of pharmaceuticals using its services. But as the Associated Press and the Verge have reported, Facebook and Instagram have let stand posts offering to share guns and marijuana even though they also violate Meta’s rules.
Experts in online communication and misinformation say those examples suggest that the criminalization of abortion could allow for false information to spread and reliable information to be taken down.
“There’s going to be concerns for Facebook and Twitter and social media platforms to the extent that police claim that content, providing medically accurate information about abortion care, is unlawful, similar to how they have targeted information about how to make weapons at home, or how to engage in other crimes,” said Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project (STOP).
In the meantime, interest in medication has soared as laws barring the termination of pregnancies begin to take effect in 13 states, with more poised to join them. Abortion pills are regulated by the federal government, which allows them to be prescribed via telehealth and delivered by mail.
“The problem with abortion is that [social media companies] are, I think, unlikely to figure out quickly how to actually moderate in anything other than something around imminent harm,” said Nora Benavidez, senior counsel and director of digital justice and civil rights at Free Press, a nonpartisan organization fighting for people’s rights to connect and communicate. “And there is a lot of gray space in what content regarding healthcare or abortion information could be, where there’s room for social media companies to be cracking down because they’re risk averse.”
Facebook and Instagram didn’t respond to Grid’s interview request. But Meta spokesperson Andy Stone posted on Twitter that “content that attempts to buy, sell, trade, gift, request or donate pharmaceuticals is not allowed. Content that discusses the affordability and accessibility of prescription medication is allowed. We’ve discovered some instances of incorrect enforcement and are correcting these.”
Twitter declined to comment about how it would approach moderation decisions around abortion content.
What constitutes “aiding and abetting”?
Bridget Todd, communications director at the feminist group UltraViolet, said that her group met with Facebook representatives after a draft of the Supreme Court’s recent abortion ruling leaked last month. UltraViolet was concerned about how Facebook would moderate abortion content, particularly medical misinformation about abortion and abortion pills. Grid reviewed pages of this content, which included posts that said medical abortion was never safe and that it led to a 500 percent increase in ER visits, among other false claims.
“In the meetings, [Facebook representatives] say all the right things, all the things you would want them to say, but we’re still sort of waiting for the actual progress,” said Todd.
Meanwhile, the reports that Facebook and other social platforms are taking down some abortion-related posts raises a key issue: what gets labeled as accurate information or not and how social platforms intend to address it.
Section 230, the federal statute that sets the baseline for intermediary liability in the United States, provides a broad liability shield to content hosts and other intermediaries in the event a state were to make a law banning information being shared about abortions. In short, it is unlikely that Facebook or the like would be held liable for hosting that content.
Emma Llansó, director of the Center for Democracy and Technology’s Free Expression Project, said there’s also likely a lot of concern among online service providers about how far different states are going to go to push the boundaries of what constitutes “aiding and abetting” somebody seeking an abortion.
And even if the companies do have a strong chance of winning in court, they might prefer to avoid messy legal battles altogether. That could result in them erring on the side of taking down more content, rather than less, to avoid any potential litigation.
“This is a dynamic that we see again and again with online service providers, when there is this heightened or new risk of liability,” said Llansó. “When there are concerns about lawsuits and prosecutions are raised, they become much more cautious.”
Llansó pointed to the passage of the 2018 FOSTA/SESTA law as an example. The statute’s goal was to crack down on illegal sex trafficking online. But online service providers responded by taking steps against content related to sex work, prostitution and sex and sexuality in general. There was a heightened concern among such companies that somehow they would get drawn into a lawsuit about sex trafficking. FOSTA/SESTA was the only law that has substantially changed Section 230 protections.
The situation now with abortion is made even more complicated by the fact that states such as Texas are also pursuing laws that would let the state mandate what could be removed (or not) from social media platforms.
“That could go in a number of ways,” said Benavidez. “One would be providing pro-choice information with the state mandating the company remove it, even though that’s protected speech, potentially just providing information for a given user. On the flip side, what if social media companies end up protecting a viewpoint and then they are seen by the state to be aiding and abetting an abortion? It is going to get really messy.”
Thanks to Lillian Barkley for copy editing this article.