"abortion pill reversal" proponents engaged in noncommercial speech, 2d Circuit agrees for PI purposes

National Institute of Family and Life Advocates v. James, --- F.4th ----, 2025 WL 3439256, No. 24-2481-cv (2d Cir. Dec. 1, 2025)

Unlike the similar California proceeding, the district court in NY granted a preliminary injunction against enforcement of consumer protection law against evidence-free “abortion reversal” claims, because there weren’t allegations of commercial benefit from promoting those claims. “The NIFLA plaintiffs are non-profit, faith-based organizations that have made, and seek to continue to make, statements regarding abortion pill reversal.” At this stage, they were likely to succeed on their First Amendment claim because their APR-related statements are noncommercial speech. The statements were religiously, not economically, motivated; the NIFLA plaintiffs didn’t provide APR and only refer individuals to third-party providers who could then administer APR; and they received no remuneration for their services, including no referral fees or commissions. The NIFLA plaintiffs didn’t charge for access to APR “information” or any of their pregnancy-related or parenting services.

“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.” E.g., abortion information, LGBT rights groups in states that ban in-state gender-affirming care, or “a group that matches immigrants with organizations providing access to employment, English language classes, or immigration legal services.” “Expanding commercial speech in a way that covers public statements made by these types of organizations would push the commercial speech doctrine far beyond its ‘core’ of regulating commercial transactions.”

The AG argued that the speech should be considered commercial because “someone must bear the cost” of APR “be it insurance, the medical provider, or a charity,” and that the NIFLA plaintiffs offer services in the “stream of commerce” that have commercial value. “However, this would be true of any non-profit providing information, free services, and access to third-party providers; those services will inevitably have some commercial value and eventually someone will have to be paid for them.”

The AG also argued that “consumers will likely be led to believe that the NIFLA plaintiffs will arrange for them to receive [the APR protocol] because their intended statements invite consumers to access a network of physicians who are willing and able” to provide it, thus making the statements analogous to ads for other medical services. But the cases cited by the AG involved medical procedures or products offered in exchange for money. The NIFLA plaintiffs allege that they receive no direct or indirect payment for the services they provide or referrals they make. “Moreover, there is no evidence in the record, at this stage of litigation, to suggest that the NIFLA plaintiffs gain other types of economic benefits by engaging in this speech, such as an increased customer base or a capital increase through fundraising.” [If soliciting for nonprofits is noncommercial speech, why would ordinary fundraising be commercial speech as to statements about what the nonprofit does?]

The court emphasized that “no factor, including the speaker’s motivation, is dispositive to the noncommercial speech inquiry.” But it wasn’t just ideological motivation at issue here: the NIFLA plaintiffs were actually not providing or charging for services or getting direct or indirect compensation for their referrals.