Bigelow v. Virginia
Headline: Law banning advertisements that encourage abortion is struck down as applied, protecting an editor and allowing newspapers to publish information about legal out-of-state abortion referral services.
Holding: The Court held that Virginia could not criminally punish an editor for publishing a lawful out-of-state abortion referral advertisement because the ad contained protected information and the statute could not constitutionally reach that publication as applied.
- Protects newspapers from criminal liability for truthful ads about legal out-of-state services.
- Allows people to receive information about lawful services in other states.
- Does not block states from regulating deceptive or locally harmful medical advertising.
Summary
Background
A Charlottesville weekly printed an advertisement from a New York referral service offering "immediate placement" in accredited hospitals and clinics, phone numbers, and the statement that abortions were legal in New York with no residency requirements. The paper's editor was prosecuted under a Virginia criminal law that made it a misdemeanor to "encourage or prompt" obtaining an abortion, convicted in state courts, and appealed to the United States Supreme Court.
Reasoning
The majority held that the advertisement included factual information of public interest, not just a simple commercial offer, and that commercial form does not automatically remove First Amendment protection. Because the services were lawful in New York and the ad was not shown to be deceptive or to cause harm inside Virginia, the Court said Virginia could not constitutionally apply its 1971 statute to punish the editor for publishing that ad.
Real world impact
The ruling protects editors and newspapers from criminal punishment for publishing truthful information about lawful out-of-state medical services. It does not mean all advertising is immune; States may still regulate deceptive or locally harmful practices. The Court reversed the editor's conviction.
Dissents or concurrances
A dissent argued the ad was a classic commercial offer and that States have a legitimate interest in regulating medical advertising to protect patients and professional ethics, so the conviction should have been upheld.
Opinions in this case:
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