Politician who banned abortion-related Web sites dies

Henry Hyde, 83, died on Thursday, leaving behind a federal law that penalizes Internet discussions of abortion with five years in prison. The law's still on the books today.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
3 min read

Henry Hyde, the former Illinois congressman who led attempts to impeach President Bill Clinton and was a longtime foe of abortion, died on Thursday. He was 83.

The Associated Press has already published an extensive obituary of Hyde, a Republican who retired from Congress at the end of the last session. What the AP doesn't mention is Hyde's authorship of a federal law--still on the books today--making it a felony to distribute information over the Internet that relates to obtaining an abortion.

Hyde's successful amendment to an unrelated telecommunications bill in 1996 extended the Comstock Law to "interactive computer services." The amended language is here:

Whoever...knowingly uses any...interactive computer service...for carriage...any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made...shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

I've highlighted the most relevant portions of the Hyde Abortion Web Ban in bold. Another section of that law, for which Hyde was not responsible, bans the transmission of any "matter of indecent character" (goodbye, Goatse) and any "filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound" (so much for a large percentage of rap MP3s and MySpace profiles of bands).

The Hyde Abortion Web Ban was never challenged by groups like Planned Parenthood, the American Civil Liberties Union, or People for the American Way, all strong supporters of the right of women to have an abortion. It remains the law of the land today, even though it criminalizes things like discussing RU-486, not to mention online pharmacies actually dispensing it. (Hyde, for his part, entered into a House floor exchange with Rep. Nita Lowey, a New York Democrat, and said that he never meant the law to ban discussions of abortion.)

So were the ACLU and its ideological pro-choice allies slacking? Not exactly. What happened is that after the Hyde Abortion Web Ban got glued onto the Telecommunications Act, the Clinton administration decided not to enforce it on grounds that it violated the free-speech rights protected by the First Amendment. Instead of vetoing the measure, which would have been a cleaner solution, President Clinton said in a signing statement that the Hyde Abortion Web Ban was "unconstitutional."

Attorney General Janet Reno then wrote in a letter to Vice President Al Gore: "This is to inform you that the Department of Justice will not defend the constitutionality of the abortion-related speech provision of (the law) in those cases, in light of the Department's longstanding policy to decline to enforce the abortion-related speech prohibitions (in the related statutes) because they are unconstitutional under the First Amendment." The Bush Justice Department has not prosecuted anyone under it either.

But because the law still exists, a future Justice Department could prosecute Americans under it, especially if a future Supreme Court takes a more restrictive view of free speech and abortion rights. Henry Hyde may have his revenge yet.