Abortion ‘Reversal’ Speech Protected From NY State Regulation (1)

New York Attorney General Letitia James (D) is barred from enforcing state false advertising and consumer protection laws against anti-abortion medical centers in the state that promote abortion “reversal.”

A lower court correctly prohibited James from bringing an enforcement action against these plaintiffs because the First Amendment’s free-speech clause likely protects their statements about a procedure in which pregnant people take the hormone progesterone to “reverse” the effects of drugs that induce abortion, including mifepristone, the US Court of Appeals for the Second Circuit said Monday.

Talk about the reversal process isn’t commercial speech that traditionally lacks full constitutional protection, Judge Joseph F. Bianco said.

James appealed after a district court granted the centers a preliminary injunction shielding them from threatened enforcement of the laws in question. The lower court held that the speech wasn’t commercial and the challengers were likely to succeed on the merits of their First Amendment claim. The Second Circuit affirmed both rulings.

The ruling comes one day before the US Supreme Court is set to hear oral arguments in a case testing New Jersey Attorney General Matthew Platkin’s issuance of subpoenas seeking donor rolls and other information from a crisis pregnancy center there. Platkin (D) argued the case against him wasn’t ripe because proceedings to enforce the subpoenas were still pending in state courts.

The Second Circuit rejected a similar abstention argument in James’ case.

Different Disputes

Challenging the New York ban is the National Institute of Family and Life Advocates, or NIFLA, an umbrella group that represents anti-abortion centers nationwide. The groug James on behalf of New York-based members who feared they’d be next after the attorney general filed a civil enforcement action against other entities not involved in this suit for making substantially similar statements about abortion reversal that she said were false and misleading.

James agued the suit didn’t belong in federal court because there’s already a case pending in state court. The Second Circuit, however, rejected the argument, saying the plaintiff’s claims weren’t “inextricably intertwined” with the state-court enforcement action. The NIFLA plaintiffs aren’t involved in that case, and the federal suit won’t interfere with it, the court said.

The Second Circuit specifically agreed with the lower court that the plaintiffs are likely to succeed on their First Amendment claims because their abortion-reversal speech was noncommercial in nature. The plaintiffs’ speech was religiously and morally motivated, the plaintiffs didn’t gain any financial benefit from it, and it served only to give the public information about reversal procedures offered by other entities, it said.

James didn’t demonstrate a likelihood of her case surviving First Amendment scrutiny, the court said.

Potential Split

The decision potentially sets up a split with the Ninth Circuit—which currently is considering two appeals from centers that have either been served or fear being served with enforcement actions by Attorney General Rob Bonta (D)—depending on what the Supreme Court decides in the New Jersey case.

There will still be a live question about whether the abortion reversal speech is commercial in nature, and thus subject to less First Amendment protection, if the top court limits its holding to the abstention question.

Commercial speech is usually defined as speech that’s economically motivated, or aimed at making money for the speaker. Government restrictions on commercial speech are subject to a more lenient standard of First Amendment scrutiny than applies to other forms of expression. The New York centers argued that their speech wasn’t commercial because they weren’t economically motivated to distribute it.

Judges Eunice C. Lee, and Alison J. Nathan joined the opinion.

Alliance Defending Freedom represents NIFLA and the centers. The state attorney general’s office represents James.

The case is Nat’l Inst. of Fam. & Life Advocs. v. James, 2d Cir., No. 24-2481, 12/1/25.