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The Implications of Weakening Section 230 on the LGBTQ+ Community in a Post-Roe World

After the Dobbs ruling overturning Roe v. Wade, anti-abortion activists and legislators have turned their attention to limiting and possibly banning online information-sharing on the issue. Defending online speech about abortion information, fundraising, and organizing has become crucial since the death of Roe. One safeguard currently protecting online free speech on the issue is Section 230 of the Communications and Decency Act. At its most basic level, Section 230 protects online services and platforms from liability when they do not remove third-party content. It also protects these services and platforms from liability when they do remove content. Section 230 is an incredibly important law preserving online access to reproductive healthcare information. Alarm bells have been set off in the LGBTQ+ community as minority groups will be disproportionately affected if access to online reproductive health care information is limited. LGBTQ+ people rely on the Internet for healthcare information as discrimination in the industry has dissuaded many members of the community from in-person visits. LGBTQ+ liberation and reproductive justice are inextricably linked, and at this intersection are the core ideals that connect them. The LGBTQ+ liberation movement is based on the ability of all individuals to have freedom and self-determination over their own bodies, health, and lives – the same ideas and values that underpin reproductive justice. LGBTQ+ justice is reproductive justice, and reproductive justice is LGBTQ+ justice.

The death of Roe is just the beginning of the battle that is being waged against reproductive rights by anti-abortion activists. The next step is moving the fight online. The National Right to Life Committee, the country’s largest anti-abortion organization, has proposed a “post-Roe Model abortion law” for state legislators to follow. This “model law” includes four key components: Anyone who performs an abortion commits a felony (except in life-threatening situations), helping a pregnant person (whether physically or through the Internet) have an abortion is a felony, making or selling abortion-inducing substances is a felony, and helping a pregnant minor get an abortion is a felony. The committee urges lawmakers to either include some or all sections of the law in their own proposed legislation. This legislation would criminalize “aiding and abetting” abortion on the Internet and, even more broadly, “hosting or maintaining a website that encourages or facilitates efforts to obtain an illegal abortion.” The National Right to Life Committee is also lobbying states to criminalize advertising information about abortion pills and other methods of ending a pregnancy. Online reproductive advertisements will become incredibly relevant in a country that is turning to the Internet for reproductive healthcare. If the proposed legislation passes, companies and individuals will be forced to navigate uncharted legal ground. Although this is only model legislation and has not yet been implemented anywhere, some states, including South Carolina, have already begun to consider doing so.

Section 230 is a crucial line of defense for keeping abortion and reproductive care information available online. This model law could violate Section 230. As Section 230 exists today, it protects platforms against federal civil lawsuits and litigation "under any state or local legislation that is inconsistent with this section." This means that a lawsuit from an anti-abortion group or a criminal proceeding launched by a state attorney concerning speech about reproductive health care would be dismissed. This doesn't mean it is absolute, as it does not offer protection from the enforcement of federal criminal laws or immunity if the platform develops or creates the content. Crucially, it protects against criminal liability from state laws.

However, Section 230 has become a rocky topic among Democrats and Republicans, with calls for reformation from both sides, often for opposite reasons. Some Democrats argue that platforms have leaned on Section 230 to flout responsibility for their sites' false and possibly dangerous content. In comparison, Republicans are concerned that Section 230 allows platforms to censor conservative views. Many proposed amendments to Section 230 include the Safe Tech Act, the Justice Against Malicious Algorithms Act, the Earn it Act, and the Health Misinformation Act. While some of these proposed amendments are well-intentioned, in a post-Roe world they could lead to devastating effects and allow anti-abortion groups to exploit the amendments. For example, if a platform hosts content that may cause "irreparable harm," the Safe Tech Act would amend Section 230 by removing that platform's immunity from lawsuits. Anti-choice groups could weaponize this vague language and frame it as an abortion causes “irreparable harm” to the fetus.

The last alteration to Section 230, the FOSTA-SESTA bill, highlights what happens when digital free speech protections are weakened. FOSTA-SESTA stands for the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act. FOSTA carved an exception out of Section 230’s liability shield for websites that “knowingly assist, support, or facilitate” activity violating sex trafficking law. Studies found that the law likely placed marginalized groups - women, sex workers, people of color, and LGBTQ+ people - at an increased risk as a wide range of companies shut down or limited access to online services related to sex trafficking in order to avoid liability. FOSTA serves as a cautionary tale that we should not and cannot ignore.

The threat of liability and lawsuits can potentially cause massive content moderation changes. If Section 230 is weakened by these proposed amendments, online platforms will face an onslaught of state law enforcement actions and civil lawsuits that claim they are violating state laws. Even if these lawsuits fail, they will become costly without Section 230 protections to get them dismissed quickly. "Rather than spending tens of millions fighting in court, many online platforms will instead 'race to the bottom' and comply with the most restrictive state laws," said Evan Greer and Lia Holland of digital rights group Fight for the Future. This will lead to the intended effect by anti-abortion activists, which is to overwhelm smaller companies and intimidate the big tech companies into taking down the posts and information.

This is a wake-up call to protect Section 230 and to pay attention to what’s going on at the state level, as attacks on abortion and LGBTQ+ rights have moved to a state battle. According to the Human Rights Campaign, state legislators introduced more than 340 anti-LGBTQ+ bills this session. It’s past time to pay attention.

The overturning of Roe doesn’t just hurt cisgender women; the LGBTQ+ community will be disproportionately affected by this ruling. The LGBTQ+ community relies on reproductive health care. Queer women, nonbinary people, and transgender men all receive a range of reproductive health care from clinics that provide abortions. Some, but certainly not all, of the services that the LGBTQ+ community benefits from in reproductive clinics include: Access to fertility treatments, as many members of the LGBTQ+ community rely on assisted reproduction; many clinics that offer abortions also provide gender-affirming healthcare for trans and nonbinary persons; and abortion information and services for all members of the community. The violence inherent in forced pregnancy is already awful enough, but when somebody who is transgender or nonbinary has to carry an unwanted pregnancy, it can result in gender dysphoria. Keeping those clinics open and accessible is incredibly important.

All of these situations highlight just how important access to reproductive health care is, especially for members of the LGBTQ+ community. The overturning of Roe puts all of these treatments in danger. Now more than ever, many people are seeking answers online for access to reproductive health care.

This is where Section 230 comes in. Through the protections Section 230 provides, platforms can keep information about abortion on their site. However, if amendments to Section 230 are successful, providing access to this kind of information might not only be restricted, but criminalized. Those wanting to share information online about abortion will have to navigate the changing climate of restrictive state laws and social media policies.

For the LGBTQ+ community, protecting Section 230 is critical. Compared to their heterosexual peers, in a recent study, LGBTQ+ members reported greater use of the Internet, especially social media. Due to fear of discrimination, many LGBTQ+ people seek out medical information online. Survey data from CAP shows that discrimination played a role in preventing a significant number of LGBTQ+ people from seeking healthcare. This turn away from in-person visits to telehealth and online information highlights how important it is to keep reproductive care information online and safe to access. In this post-Roe battlefield, if Section 230 is not protected many minority groups - including the LGBTQ+ community - could lose access to reproductive healthcare, which would have devastating impacts on their physical and mental health.

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