Bigelow v. Virginia (1975)

In Depth

Background

The Virginia Weekly, a newspaper published in Charlottesville, Virginia, carried an advertisement stating: "Abortions are now legal in New York.  There are no residency requirements."  The ad announced that the Women's Pavilion of New York City would place women with unwanted pregnancies in accredited hospitals and clinics in New York "at low cost."[1] The managing editor of the paper, Jeffrey C. Bigelow, was charged with violating a Virginia statute making it a misdemeanor to encourage the procuring of an abortion.  He was tried and convicted in a county court.  On appeal, the Circuit Court rejected Bigelow's claim that the statue was unconstitutional and sentenced him to pay a fine of $500, $350 of which was suspended on condition that he commit no further violation of the statute.

The Supreme Court of Virginia affirmed, rejecting Bigelow's claim that the ad was purely informational and therefore did not "encourage" the procurement of an abortion.  The Court also rejected his First Amendment claim, holding that the State may constitutionally prohibit a commercial advertisement, particularly one related to the medical health field, as a valid exercise of the State's police power.  The Court ruled that Bigelow did not have standing to claim that the statute was overbroad because his speech was purely commercial and therefore he lacked a legitimate First Amendment interest.

Bigelow appealed this ruling to the U.S. Supreme Court and during the pendency of his appeal Roe v. Wade and Doe v. Bolton were decided.  The Supreme Court vacated Bigelow's judgment of conviction and remanded the case for further consideration in light of Roe and Doe.  The Supreme Court of Virginia reaffirmed his conviction and Bigelow again appealed to the U.S. Supreme Court.

The Statute Under Review

The Virginia statue at issue provided:

If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, encourage or prompt the procuring of abortion or miscarriage, he shall be guilty of a misdemeanor.

Va.Code Ann. §18.1-63 (1960)

The statute was later amended to restrict its application to abortions performed in Virginia that were illegal in Virginia.

The Court's Holding

The Supreme Court concluded that the statute violated Bigelow's First Amendment rights, despite the commercial nature of the advertisement he published, and reversed the judgment of the Supreme Court of Virginia.  The Court also found error in the Virginia courts' denying Bigelow standing to claim that the statute was overbroad, but declined to rule on this claim since the amendment to the statute rendered it moot.  Justice Blackmun delivered the opinion of the Court, in which Chief Justice Burger and Justices Douglas, Brennan, Stewart, Marshall and Powell joined.

The Court's Reasoning

The Court distinguished this case from previous cases upholding ordinances restricting commercial speech on the basis that the advertisement did not simply propose a commercial transaction but contained information regarding the legality of abortion in New York, information which was of interest to those seeking legal reform in Virginia. Indeed, because it related to abortion, the content of the ad was of "constitutional interest" to the general public, according to the Court.

The Court reiterated that advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest, but held that Virginia's legitimate interest in regulating advertising regarding medical care within its borders did not extend to advertising regarding medical care beyond its borders.

The Dissent

Justice Rehnquist, in a dissenting opinion in which Justice White joined, criticized the majority opinion for granting the ad more than the limited constitutional protection traditionally accorded commercial advertising merely because the ad contained information relating to the abortion law of another state.

Justice Rehnquist viewed the advertisement as a classic commercial proposition directed toward the exchange of services, rather than the exchange of ideas, and therefore entitled to "little constitutional protection." As such, it was indistinguishable from commercial proposals in earlier cases where ordinances were upheld.

Even if the advertisement was something more than a normal commercial proposal, Rehnquist argued, Virginia would have a legitimate public interest in its regulation; specifically, the prevention of commercial exploitation of women seeking abortions.  While a state does not have the power to regulate commercial transactions beyond its borders, it retains an independent power to regulate commercial solicitation and advertising within its borders.