Bigelow v. Virginia (1975)
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." 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
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.
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.
 The ad read as follows: "UNWANTED PREGNANCY.
LET US HELP YOU. Abortions are now legal in New York. There
are no residency requirements. FOR IMMEDIATE PLACEMENT IN
ACCREDITED HOSPITALS AND CLINICS AT LOW COST Contact WOMEN'S
PAVILION 515 Madison Avenue, New York, N.Y. 10022 or call any time
(212) 371-6670 or (212) 371-6650. AVAILABLE 7 DAYS A WEEK. STRICTLY
CONFIDENTIAL. We will make all arrangements for you and help
you with information and counseling."