Abortion Reversal Debate at Second Circuit Centers on Motivation

A panel of appeals court judges appeared reluctant Tuesday to become the first in the nation to hold that speech can be “commercial” in nature under the First Amendment even though the speaker—here, New York anti-abortion medical centers—lacked an economic motivation for disseminating it.

The oral arguments in the US Court of Appeals for the Second Circuit centered on whether information about abortion “reversal” is fully protected by the US Constitution. The procedure consists of taking the female hormone progesterone to counteract a pill-induced abortion and save a pregnancy.

In a case closely watched by advocates on both sides of the issue, New York Attorney General Letitia James (D) defended her authority to enforce state consumer protection laws against those who engage in reversal speech without running afoul of the First Amendment, saying such statements are false, misleading, and potentially harmful.

Those laws target commercial speech, which is traditionally defined as speech that’s economically motivated, or aimed at making money for the speaker. Such speech traditionally isn’t afforded full First Amendment protection.

The case is emblematic of a national trend in which left-leaning states have used or threatened to use consumer protection and false advertising laws to halt speech about abortion reversal.

The Third Circuit previously allowed New Jersey’s attorney general to proceed with requests for information from anti-abortion medical centers as a part of his investigation against them, and the US Supreme Court will hear arguments on the question this fall.

‘Breaking New Ground’

Judge Joseph F. Bianco at the outset asked Jonathan Hitsous, an attorney in James’ office, if the reversal speech could be considered commercial if all the centers did was put out information about the procedure, and their only motive was their moral and religious objection to abortion.

Hitsous said the state “doesn’t accept” that that’s all the centers intended to do.

The centers might not offer reversal treatment themselves, but their websites and written materials linked and identified the websites of groups that do, he said. That information gave reasonable consumers “googling unplanned pregnancy” the impression that the centers would “help” them get the treatment, he said.

But Caroline Lindsay, who represented the centers and nonprofit National Institute of Family and Life Advocates, argued that the speech wasn’t commercial because the centers weren’t economically motivated to distribute it.

Bianco noted the lack of an economic motivation doesn’t necessarily render the speech noncommercial, though he suggested that the court would be “breaking new ground” if it reached that holding.

Economic motivation is the key factor for determining when speech is commercial, said Lindsay, an attorney with the Christian, conservative law firm Alliance Defending Freedom. The medical centers’ only motivation here was to help people in need, not derive economic benefits from their reversal speech, she said.

Incidental Economic Benefit

Judge Eunice C. Lee asked whether speech that led to an incidental economic benefit could be considered commercial. For example, she said, the medical centers could receive fees from centers to which they referred people for the reversal procedure.

Economic benefit must be the primary motive for the speech, not just a motivation, Lindsay said.

Both attorneys addressed questions from the judges about Younger abstention, a legal doctrine meant to prevent parallel proceedings in state and federal courts.

Lindsay said the doctrine doesn’t apply to this case because the plaintiffs aren’t parties to a separate state-court proceeding involving other anti-abortion groups, including Heartbeat International Inc.

But the plaintiffs have put themselves in Heartbeat’s shoes, and the federal case could, at the least, lead to decisions that would preclude certain arguments in the state court litigation, Hitsous said.

Standing wasn’t at issue here because the medical centers alleged sufficient harm by saying they’ve already stopped their reversal speech out of fear they would be James’ next targets, he said.

Judge Alison J. Nathan also sat on the panel.

The case is Nat’l Inst. of Fam. & Life Advocs. v. James, 2d Cir., No. 24-2481, oral arguments held 6/24/25.