The little-known provision, part of the Communications Decency Act, took effect when the CDA was signed in February 1996. Nine abortion rights groups and individuals filed a lawsuit to block the provision. Soon after, the Justice Department specifically said it wouldn't prosecute online producers of abortion material.
Justice Charles Sifton issued his decision on March 12, saying that the government's promise not to prosecute was grounds to dismiss the case. He said the government is good for its word because, for example, it has never prosecuted a statute passed in 1897 that made it illegal to cross state lines with information about products "intended to induce abortion."
Sifton said he was confirming what both parties in the case already expressed: "In this case, both parties agree that the act's provisions relating to abortion speech are, on their face, unconstitutionally violative of First Amendment rights as applied to both commercial and noncommercial speech."
Nevertheless, the CDA and the 1897 law remain on the books.
CDA opponent Planned Parenthood says Sifton's ruling will not hinder its fight to protect free speech about abortion.
"The Constitution has always been clear, and the attorney general has stated repeatedly that the restriction on providing abortion material is unconstitutional and unenforceable," Roger Evans of Planned Parenthood said today.
"Planned Parenthood puts information about abortion on its Web site every day without fear of prosecution. We are confident that if there was ever a risk that we would be able to obtain an immediate injunction from a federal court."
Planned Parenthood is still worried about the rest of the CDA, however. The CDA made it a felony to send or show minors "indecent" material, punishable by two years in jail and a $250,000 fine for each offense. The Supreme Court heard arguments the case last Wednesday.
"Those restrictions would not be applied to abortion, but to other issues like information on ways to prevent the contraction of HIV and how to use birth control," Evans said.
In another case, Planned Parenthood won a permanent injunction against Web site creator Richard Bucci, who used the domain name "plannedparenthood.com" to host his antiabortion site. New York Federal District Judge Kimba Wood issued the injunction last Wednesday.