Missouri AG Andrew Bailey uses attacks on free speech to limit access to healthcare
Never take a Bailey legal claim at face value.
My column for the Missouri Independent today concerns a number of abusive legal actions aimed at suppressing free speech that have been embarked upon by our Attorney General Andrew Bailey and his predecessor, now Senator Eric Schmitt.
Murthy v. Missouri (formerly Missouri v. Biden, as Bailey continues to call it to emphasize his MAGA crusade against the Biden Administration) is a Missouri grown mess of a case that was argued at the U.S. Supreme Court last month. Missouri will lose this case, but Bailey and Schmitt have nonetheless had a lot of success using it to stymie efforts to combat disinformation on social media. They sought to restrict speech between social media companies and the federal government while portraying themselves as free speech champions.
This is extra offensive in light of Bailey’s many other actions to suppress speech that he doesn’t like. I want to expand on one category of attacks here: those targeting healthcare.
Bailey’s attempt to stop Planned Parenthood from referring minors out of state comes in the larger context of doctors being afraid to talk about abortion in the wake of Dobbs. Medical professionals not only have a First Amendment right to give information about abortion, but can subject themselves to liability when they fail to do so, as professor Michelle Oberman has explained. Despite this, medical providers have been fearful of giving complete information since Dobbs, causing documented harm to pregnant women.
Bailey admitted that giving out information about abortion is not illegal when asked to respond to my criticism of his lawsuit, so he obviously shouldn’t be seeking to enjoin Planned Parenthood’s referrals.
But his attempt to enjoin Planned Parenthood from paying for travel out of state is also a problem. Planned Parenthood Great Plains says they do not provide transportation and Bailey has presented no evidence that they do. Regardless, if someone is sued for paying for travel, a court should rule that the First Amendment also protects the right to fund abortion travel. Bailey’s loser of a lawsuit is government use of litigation harassment to stop protected speech.
And it’s not just Planned Parenthood and its patients whose rights and health are likely to be compromised by Bailey’s extra-legal attacks on speech. Much of what Bailey will fail to accomplish in court he can nevertheless achieve by using disinformation about the state of the law to scare people.
As I have explained, the Missouri law prohibiting “aiding or assisting” a minor in getting an abortion out of state was gutted by the Missouri Supreme Court on First Amendment grounds 17 years ago. (And that ruling predates significant developments in the U.S. Supreme Court’s “money is speech” doctrine.) But thanks to one of Bailey’s signature media tours in which he misrepresents the law applying to his stunt legal actions, some Missourians will think they cannot help a child end a pregnancy—even just by sharing information—and some minors will think they cannot ask for help.
Bailey is not the first Missouri AG to try to suppress abortion-related speech. In 2022, Schmitt joined a letter threatening Google against labeling search results to alert users to whether they had found an abortion clinic or an anti-abortion “crisis pregnancy center” posing as one.
The First Amendment protects not only the right to speak, but also the right to receive information. This is a particularly important right in the reproductive healthcare context because good information is essential to accessing care.
And the marginalized people most likely to lack access to care are also the most likely to lack information.
This is why, side note, it makes my head explode to hear certain higher-ups at important reproductive justice organizations discount the urgency of legalizing abortion in Missouri and other ban states, sometimes by implying that self-managed abortion or travel support from abortion funds is enough for now.
The availability of safe, self-managed medication abortion through the mail and travel to blue states is desperately needed harm mitigation. But those solutions require information that many people don’t have. Thinking those options make the status quo tolerable is elitism of the abortion-savvy.
Lots of people don’t know whether abortion is legal in their state until they need one, let alone know that there are workarounds. Sure, that information is available on the internet, but we cannot expect people to know to look for it, find it, and be able to act on it under the uniquely time-sensitive and physically and mentally stressful circumstances of an unwanted pregnancy. Someone who is pregnant and does not want to be needs to be able to get timely care and information from a medical provider if that is who she seeks out. That isn’t happening where abortion is illegal and too many medical professionals are afraid to even talk about it.
Which brings us back to Bailey. He is a pro at using litigation harassment paired with disinformation about the strength of his legal claims to warp the information environment and deter people from accessing healthcare. We saw another example of this last week when Bailey made it sound like a court had given him everything he had asked for in response to his civil investigative demand to Planned Parenthood for documents concerning their provision of gender affirming care.
The court actually denied him access to patient records, explaining that would violate patients’ rights under HIPAA. But inaccurate headlines and tweets, some even from people who are supportive of trans rights, wrongly announced that Bailey could now access patient records. That misconception risks detering patients and parents from even consulting doctors if they think a record of having done so is going to end up in the hands of our vociferously anti-trans AG.
We cannot let up on the fight for the free flow of accurate information. And in Missouri, that means never taking Andrew Bailey at his word about anything.