In National Institute of Family and Life Advocates v. James, (2d Cir., Dec. 1, 2025), the U.S. Second Circuit Court of Appeals upheld a district court's preliminary injunction barring New York's attorney general from taking enforcement action to prevent the plaintiff religious organizations from disseminating information regarding abortion pill reversal. Finding, on the record before it, that plaintiffs' speech is fully protected by the 1st Amendment, the court said in part:
... [W]e conclude that the speech at issue is noncommercial based on the uncontroverted evidence in the current record demonstrating that the speech is religiously and morally motivated, the NIFLA plaintiffs receive no remuneration or financial benefit for engaging in it, and the NIFLA plaintiffs do not provide APR themselves, but rather provide the public with information about APR and access to third-party providers who can offer APR. Put simply, in this context, these combined elements of the speech at issue here do not transform it into commercial speech for First Amendment purposes.
To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services. This could include, depending, of course, on the particular facts and context of each situation, a reproductive rights group in a state with abortion restrictions that provides information about out-of-state organizations that will help women obtain the procedure for free; an LGBT rights group in a state with gender-affirming care restrictions that provides free information about out-of-state organizations that will help individuals seeking hormone therapy to obtain it; or a group that matches immigrants with organizations providing access to employment, English language classes, or immigration legal services.
Reuters reports on the decision.
