Nat’l Inst. of Fam. & Life Advocs. v. James: Nonprofit Referral Speech as Noncommercial Expression and Limits on Younger Abstention

I. Introduction

In Nat’l Inst. of Family & Life Advocates v. James, No. 24‑2481‑cv (2d Cir. Dec. 1, 2025), the Second Circuit affirmed a preliminary injunction protecting the speech of several faith-based, nonprofit pregnancy organizations against threatened enforcement by the New York Attorney General. The case arises in the politically and medically contentious context of “abortion pill reversal” (“APR”) and state consumer-protection enforcement actions aimed at that protocol.

The decision is significant for two primary reasons:

• It tightens the circumstances under which federal courts must abstain under the Younger doctrine when there is a parallel state civil enforcement action against other parties. The court holds that where the federal plaintiffs’ First Amendment rights are independent and the federal injunction would not directly enjoin or practically halt the state action, Younger abstention does not apply.
• It clarifies the boundary between commercial and noncommercial speech in the context of nonprofit, religiously motivated informational and referral speech. The court holds that APR-related statements by nonprofits that do not themselves provide APR and receive no remuneration for referrals are noncommercial speech, triggering strict scrutiny rather than the more lenient commercial-speech standard.

Because the Attorney General did not attempt to justify the challenged restrictions under strict scrutiny, the panel held that the plaintiffs were likely to succeed on the merits of their First Amendment claim and that the other preliminary-injunction factors—irreparable harm and public interest—were satisfied.

The opinion thus establishes an important precedent at the intersection of:

• federal–state comity and Younger abstention;
• the commercial/noncommercial speech distinction as applied to nonprofits and advocacy organizations; and
• the regulation of controversial health-related “misinformation” through state consumer protection laws.

II. Background of the Case

A. The Abortion Pill and “Abortion Pill Reversal” (APR)

The case centers on speech about a protocol that purports to reverse medication abortions:

• A typical medication abortion involves taking mifepristone, which blocks progesterone receptors and disrupts a pregnancy, followed 24–48 hours later by misoprostol to induce expulsion of the uterine contents.
• APR proponents claim that if a woman has taken mifepristone but not yet misoprostol and wishes to continue the pregnancy, high-dose progesterone supplementation may “reverse” the effects of mifepristone and sustain the pregnancy.

The parties submitted expert materials contesting the efficacy and medical safety of APR. Importantly, the Second Circuit—like the district court—expressly declined to resolve that scientific dispute at the preliminary injunction stage, because its legal analysis turned instead on the nature of the speech and the appropriate level of First Amendment protection.

B. The State’s Enforcement Action: The HBI Case

On May 6, 2024, New York commenced a civil enforcement action in state court, People of the State of New York v. Heartbeat International, Inc., Index No. 451314/2024 (N.Y. Sup. Ct. N.Y. Cnty.) (the “HBI Enforcement Action”), against:

• Heartbeat International, Inc. (HBI) – a nonprofit that runs a network of pregnancy centers and operates the Abortion Pill Rescue Network (APRN), the APR hotline, and the website abortionpillreversal.com;
• Eleven affiliated organizations that allegedly provide APR or refer patients directly into APR treatment.

The Attorney General alleges that the HBI defendants violated New York General Business Law §§ 349, 350 and committed fraud by making false or misleading statements about the safety and efficacy of APR. These statements appear on websites, social media, and other promotional materials, and are alleged to induce individuals to undergo APR at the defendants’ facilities or through referrals to APRN providers.

C. The NIFLA Plaintiffs and Their APR-Related Speech

The federal plaintiffs—the “NIFLA plaintiffs”—are:

• National Institute of Family and Life Advocates (NIFLA): a nonprofit, non-denominational Christian ministry opposed to abortion that provides training and support to a network of pregnancy centers nationwide.
• Gianna’s House, Inc.: a nonprofit Christian pregnancy center in New York offering free services such as pregnancy tests, counseling, parenting classes, and post-abortion support.
• Choose Life of Jamestown, Inc. d/b/a Options Care Center: a similar nonprofit Christian pregnancy center offering free pregnancy and parenting-related services.

Key factual features of their operations, as accepted for purposes of the preliminary injunction:

• They offer services free of charge.
• They do not themselves provide APR.
• They refer interested clients to third-party physicians (including, at times, via APRN) who may prescribe progesterone.
• They receive no commissions, referral fees, or other direct financial benefit from APR referrals or from their broader pregnancy-related services.
• Their APR-related speech is religiously and morally motivated, grounded in pro-life beliefs.

The speech at issue includes statements such as:

• “If you have recently taken the abortion pill and are having regret, it may be possible to undo the effects of abortion drugs. Learn more here,” followed by links to APR resources.
• “Progesterone…has been used to support pregnancies with a risk of miscarriage for decades…[I]f you’ve taken the first [dose of mifepristone] and had doubts or changed your mind, you still have a chance to save your pregnancy!”
• Direct links or instructions to access abortionpillreversal.com, the APR hotline, and the APRN webpage.

After New York filed the HBI Enforcement Action, the NIFLA plaintiffs removed similar APR content from their own websites and ceased making such statements. They alleged they did so out of a reasonable fear of becoming targets of comparable enforcement actions, facing sanctions such as injunctions, civil penalties, damages, restitution, and compliance reviews.

D. The Federal Lawsuit and District Court Ruling

In May 2024, the NIFLA plaintiffs filed a federal suit in the Western District of New York seeking:

• a declaratory judgment that New York’s attempts to restrict or penalize their APR-related speech violate the First and Fourteenth Amendments; and
• a preliminary and permanent injunction preventing the Attorney General from “targeting, chilling, and punishing” such speech.

The Attorney General opposed the preliminary injunction and argued, among other things, that:

• the district court should abstain under Younger because of the pending HBI Enforcement Action in state court; and
• the plaintiffs’ APR-related speech is commercial and thus subject to greater regulation, including restrictions on allegedly false or misleading health claims.

On August 22, 2024, Judge John L. Sinatra Jr. granted the preliminary injunction, holding:

• Younger abstention did not apply—the federal case did not seek to enjoin or stay the HBI enforcement action and the NIFLA plaintiffs had independent First Amendment interests not “inextricably intertwined” with those of the HBI defendants.
• The plaintiffs’ APR-related speech was noncommercial and subject to strict scrutiny, which the State had not satisfied.
• A likely First Amendment violation satisfied irreparable harm, and the balance of equities and public interest favored an injunction.

The Attorney General appealed. NIFLA initially cross-appealed on an associational standing issue (the district court had denied NIFLA standing to seek relief for unnamed members), but later withdrew that cross-appeal, leaving only the Attorney General’s appeal on abstention and the preliminary injunction.

III. Summary of the Second Circuit’s Opinion

Judge Bianco, writing for a unanimous panel (Judges Bianco, Lee, and Nathan), affirmed the district court’s grant of a preliminary injunction. The court held:

1. No Younger abstention: Although there was a pending state civil enforcement action (HBI) involving similar APR speech, the NIFLA plaintiffs:
   • were not parties to that action;
   • asserted independent First Amendment rights, not derivatively tied to HBI’s rights; and
   • sought relief that would not enjoin or practically halt the state proceedings.
   Thus, their federal suit could proceed.
2. Noncommercial speech and strict scrutiny:
   • The APR-related statements by the NIFLA plaintiffs were not commercial speech, because:
     • they were religiously and morally motivated rather than economically motivated;
     • the plaintiffs did not charge for the speech or for related services;
     • they did not provide APR themselves, but merely provided information and referrals to third-party providers; and
     • they received no remuneration or financial benefit from APR referrals.
   • As noncommercial speech, any content- or viewpoint-based regulation must satisfy strict scrutiny. The Attorney General did not even attempt to justify the restrictions under strict scrutiny, either in the district court or on appeal, and thus failed to carry the State’s burden.
3. Preliminary injunction factors:
   • Likelihood of success: satisfied by the First Amendment analysis.
   • Irreparable harm: the loss of First Amendment freedoms, “even for minimal periods of time,” constitutes irreparable harm.
   • Public interest / balance of equities: securing First Amendment rights serves the public interest; the State did not show that no less-restrictive alternatives were available to combat allegedly misleading APR claims.

Accordingly, the panel affirmed the preliminary injunction, while emphasizing that this ruling addressed only the likelihood of success at an early stage and did not finally resolve the constitutionality of any future enforcement actions against the plaintiffs.

IV. Detailed Analysis

A. The Younger Abstention Question

1. The Younger Framework

Younger v. Harris, 401 U.S. 37 (1971), established a doctrine of federal–state comity whereby federal courts generally should not enjoin pending state criminal prosecutions. Later cases extended Younger to certain civil proceedings, but the Supreme Court has repeatedly emphasized that abstention is the exception, not the rule (Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013)).

Under the modern framework, Younger applies only in three “exceptional” categories:

1. Ongoing state criminal prosecutions;
2. Certain civil enforcement proceedings akin to criminal prosecutions; and
3. Civil proceedings that are uniquely in furtherance of the state courts’ ability to perform their judicial functions (for example, civil contempt, or certain bar disciplinary actions).

Even where the type of proceeding qualifies (e.g., a state civil enforcement proceeding), Younger abstention is warranted only when:

• the federal plaintiff is actually involved in the state case; or
• in limited circumstances, where a third party is not formally a party in state court but its federal claims and interests are so “inextricably intertwined” with the state proceeding that federal relief would amount to direct interference (Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 82 (2d Cir. 2003); Hicks v. Miranda, 422 U.S. 332 (1975)).

“Interference” under Younger generally means an order that enjoins or has the practical effect of enjoining the state proceeding (Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 70 (1st Cir. 2005)).

2. Steffel and Doran: Guiding Precedents

The Second Circuit relied heavily on the Supreme Court’s decisions in Steffel v. Thompson, 415 U.S. 452 (1974), and Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), which are particularly instructive in the third-party context:

• In Steffel, one protester left a shopping center after police threatened arrest for handbilling; his companion stayed and was prosecuted. Steffel sought federal declaratory relief. The Court held Younger did not bar Steffel’s suit, even though his companion’s prosecution was pending in state court for the identical conduct. Otherwise, Steffel would be forced either to violate the law to secure review or to refrain from potentially protected speech indefinitely.
• In Doran, three bars challenged a local topless-dancing ordinance. One bar had already been criminally charged; the other two had not. The Supreme Court held:
  • Younger barred claims by the bar already facing prosecution.
  • But the other two bars—which had ceased the regulated conduct to avoid prosecution—could seek federal relief. An injunction protecting their conduct would not interfere with the state criminal case against the third bar.

These decisions are a core foundation for the Second Circuit’s abstention analysis in NIFLA v. James.

3. The Second Circuit’s Application: Independent Rights and No Direct Interference

The Attorney General argued that Younger should apply because:

• The HBI Enforcement Action is a qualifying civil enforcement proceeding implicating important state interests in policing false or misleading health claims.
• The NIFLA plaintiffs’ interests are intertwined with those of HBI, since they wish to engage in similar APR-related advertising and referrals.
• A federal injunction might undermine or preclude the state action, either practically or through principles of preclusion or persuasive authority.

The Second Circuit rejected this argument, closely tracking Steffel and Doran:

• The NIFLA plaintiffs alleged they previously engaged in APR-related speech similar to that challenged in the HBI case, and ceased out of fear of enforcement—just like the bars in Doran that stopped topless dancing, and Steffel, who stopped handbilling.
• They sought to vindicate their own independent First Amendment rights, not merely derivative rights contingent on HBI’s.
• They did not seek to enjoin or stay the HBI Enforcement Action, nor to block enforcement of the statute against HBI in particular. They asked only for protection of their own speech.
• The Attorney General conceded that a federal judgment here would likely not have formal preclusive effect on the HBI case, further weakening any “interference” argument.

Thus, the panel concluded there was “no daylight” between this case and Steffel/Doran: federal plaintiffs who have halted their speech because of a parallel state enforcement action against others are not barred by Younger from seeking federal protection of their rights, so long as:

• their rights do not depend on the outcome of the state case, and
• the requested relief does not enjoin or effectively halt the state proceeding.

4. Spargo Distinguished: Derivative vs. Independent Rights

The Attorney General relied heavily on the Second Circuit’s decision in Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65 (2d Cir. 2003).

In Spargo:

• A state judge faced disciplinary proceedings for alleged ethical violations in his judicial campaign.
• Two of his political supporters—not parties to the state proceeding—brought a federal action asserting that the ethics rules violated their First Amendment rights to support and associate with the judge.
• They also sought an injunction blocking the disciplinary proceeding against the judge.
• The Second Circuit held their claims were “entirely derivative” of the judge’s own First Amendment rights: they had a right to engage in the challenged support activities only if the judge himself had a right to engage in the conduct prohibited by the ethics rules. Their claims were therefore “unavoidably intertwined and inseparable” from the state disciplinary proceeding, and abstention was required.

In NIFLA v. James, the court distinguished Spargo:

• The ethics rules in Spargo applied directly to the judge, not to the supporters; their speech rights existed only if the judge had a right to do what he did. By contrast, New York’s consumer protection laws apply directly to the NIFLA plaintiffs; their speech may be regulated regardless of what happens to HBI.
• The NIFLA plaintiffs do not claim a right to support or associate with HBI in its specific activities; they claim an independent right to engage in APR-related advocacy and referrals on their own platforms and in their own operations.
• Critically, unlike in Spargo, the NIFLA plaintiffs did not ask the federal court to enjoin the pending state proceedings or stop enforcement against HBI.

Thus, the court concluded the federal and state proceedings were not “inextricably intertwined” in the Spargo sense.

5. No “Interference” Within the Meaning of Younger

The Attorney General also argued that a favorable federal ruling might:

• “preclude” or practically prevent continued prosecution in the HBI action; or
• be used by HBI as persuasive authority to seek dismissal or other relief in state court.

The Second Circuit rejected that as a basis for abstention:

• Citing New Orleans Public Service, Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 373 (1989), the court noted that the mere fact that a federal decision may influence, or even practically preempt, a future or pending state proceeding is not enough for Younger.
• “Interference” is usually expressed as a direct injunction or stay of the state proceedings—or an order with the same practical effect.
• Here, the NIFLA plaintiffs did not seek to stop the HBI case. That they and HBI may be “aligned” in wanting the speech treated as constitutionally protected is insufficient; parallel constitutional challenges are not barred by Younger simply because two parties seek the same favorable precedent.

The court thus held Younger abstention is inappropriate. The federal court had a duty to exercise jurisdiction and adjudicate the First Amendment claims.

B. Commercial vs. Noncommercial Speech

1. Why the Distinction Matters

The heart of the First Amendment issue is whether the NIFLA plaintiffs’ APR-related statements are commercial speech or noncommercial speech.

• Commercial speech—classically, speech that “does no more than propose a commercial transaction” (Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980))—receives less protection. Truthful, non-misleading commercial speech is subject to intermediate scrutiny under Central Hudson; false, deceptive, or misleading commercial speech may be prohibited entirely (Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985)).
• Noncommercial speech—political, religious, ideological, and similar speech—receives the highest level of protection; content-based restrictions must satisfy strict scrutiny (Reed v. Town of Gilbert, 576 U.S. 155 (2015)).

Thus, if APR-related statements were commercial speech, New York could more easily justify restrictions by characterizing them as false or misleading health claims. If they are noncommercial, the State must satisfy strict scrutiny—a much steeper hill.

2. The Bolger/Bad Frog Test: A Contextual, Fact-Driven Inquiry

The Supreme Court in Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), articulated a flexible approach, considering whether:

• The speech is in the form of an advertisement;
• It refers to a specific product or service; and
• The speaker has an economic motivation for the speech.

No single factor is dispositive, and not all must be present. Courts must evaluate “the nature of the speech taken as a whole” and the surrounding context (Conn. Bar Ass’n v. United States, 620 F.3d 81, 94 (2d Cir. 2010)). The Second Circuit also referenced:

• Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998);
• IMS Health Inc. v. Sorrell, 630 F.3d 263 (2d Cir. 2010), aff’d on other grounds, Sorrell v. IMS Health Inc., 564 U.S. 552 (2011);
• Volokh v. James, 148 F.4th 71 (2d Cir. 2025) (describing categories subject to reduced protection); and
• Non-Second Circuit cases like Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council, 879 F.3d 101 (4th Cir. 2018) (en banc), and Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021).

3. Applying the Test: Why the Speech Is Noncommercial

The Second Circuit agreed with the district court that the NIFLA plaintiffs’ APR-related speech is noncommercial based on several uncontroverted facts:

1. No remuneration or economic benefit
   • The plaintiffs do not charge for their services or for access to APR-related information and referrals.
   • They do not receive any referral fees, commissions, or other direct or indirect payments from APR providers or from patients who undergo APR.
   • There was no record evidence that APR-related speech is used as a fundraising tool or otherwise tied to financial gain (unlike in other cases where nonprofit “advertising” was deemed commercial because it helped generate revenue or maintain a paying client base).
2. They do not themselves provide APR
   • The plaintiffs do not administer progesterone or operate APR clinics.
   • They are essentially providing informational and referral services, pointing women toward third-party networks (such as APRN) that may offer APR.
   • This separates them from classic medical advertising cases where a provider was promoting its own procedures or credentials (Thompson v. Western States Med. Ctr., 535 U.S. 357 (2002); Kiser v. Kamdar, 831 F.3d 784 (6th Cir. 2016); Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099 (9th Cir. 2004)).
3. Religious and moral, not economic, motivation
   • The plaintiffs’ opposition to abortion and promotion of APR arise from religious convictions and moral beliefs, not from financial incentives.
   • The Attorney General, importantly, conceded for purposes of the preliminary injunction that the plaintiffs’ speech was not economically motivated.
4. Informational context and function
   • The speech is framed as information, counseling, and moral exhortation on a highly contested public issue—abortion—not as ordinary product advertising.
   • Even though the speech mentions a “protocol” (APR) and provides links to providers, the overall content is consistent with advocacy and support services by a religious nonprofit rather than a commercial promotion of its own paid services.

Looking at “the nature of the speech taken as a whole,” the court concluded that this combination—free services, no remuneration, religious motivation, and third-party provision of the actual medical service—places the speech outside commercial speech doctrine at this stage of the case.

4. Alignment with Greater Baltimore and In re Primus

The Second Circuit’s analysis strongly echoes the Fourth Circuit’s en banc decision in Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council, 879 F.3d 101 (4th Cir. 2018):

• There, a Christian pregnancy center that provided free services was required by a city ordinance to post signs stating it did not provide or refer for abortions or birth control.
• The Fourth Circuit held the waiting-room speech was noncommercial:
  • no transactions were proposed in the waiting room;
  • the center received no remuneration of any kind, including referral fees; and
  • a “morally and religiously motivated offering of free services” could not be reduced to “a bare commercial transaction.”

The Second Circuit expressly adopted this logic, applying it to APR-related speech and emphasizing that the plaintiffs’ provision of free, religiously motivated services without compensation keeps them on the noncommercial side of the line.

The court also analogized to In re Primus, 436 U.S. 412 (1978), where an ACLU-affiliated lawyer’s letter offering free legal assistance to a potential litigant was treated as political and associational speech rather than commercial solicitation. Because the assistance was free and motivated by civil-liberties objectives, not financial gain, it remained fully protected under the First Amendment and subject to strict scrutiny.

5. Rejection of the Attorney General’s Counterarguments

The Attorney General advanced several theories to characterize the speech as commercial:

1. “Someone must pay” theory: Because someone—insurance, a provider, or a charity—ultimately bears the cost of APR, the speech is in the “stream of commerce” and thus commercial.
   • The court rejected this as overly broad. Virtually any nonprofit service that leads to downstream economic activity (e.g., legal aid referrals, health clinic referrals, social services) could be swept into commercial speech on this logic.
   • The fact that some downstream provider is paid does not convert the upstream nonprofit advocacy or referral into commercial speech, especially where the speaker receives no economic benefit from the transaction (Greater Baltimore again).
2. “Conduit/proxy” theory: The plaintiffs serve as a conduit to APR providers; consumers will reasonably believe they are being invited into a commercial transaction for APR, similar to medical advertising.
   • The court distinguished cases where the speaker itself sold the product or procedure or where the speech was tied to revenue-generating fundraising or client acquisition.
   • Here, the plaintiffs are several steps removed: they do not sell APR, do not get paid for referring to APR, and are providing free informational and counseling services, like many advocacy organizations.
3. Motivation not dispositive: The Attorney General argued the district court overemphasized religious/moral motivation.
   • The panel agreed that motivation alone is not dispositive. But it is one factor among several (Bolger), and here it is combined with:
     • lack of remuneration,
     • lack of direct provision of APR, and
     • the informational, advocacy context.
   • On the totality of the record, the court found the speech is likely noncommercial at this stage.

The court also addressed (in a footnote) district court decisions from other circuits involving APR-related speech, such as NIFLA v. Bonta, 769 F. Supp. 3d 1109 (C.D. Cal. 2025), and Culture of Life Family Services, Inc. v. Bonta, No. 24‑cv‑1338, 2025 WL 1687929 (S.D. Cal. June 13, 2025). Those cases found APR-related speech commercial, but on a different factual record, where plaintiffs appeared to engage in fundraising or directly provide APR, indicating a “powerful economic motivation.” The Second Circuit underscored that, in contrast, no such evidence appears in the record here.

C. Strict Scrutiny and the State’s Failure to Justify Its Regulation

1. Strict Scrutiny Triggered

Because the court classified the speech as noncommercial, and because the State’s enforcement activity targets speech about a specific content-laden subject (APR), the regulation is content-based. Under Reed v. Town of Gilbert, 576 U.S. 155 (2015), and NIFLA v. Becerra, 585 U.S. 755 (2018), content-based regulations of noncommercial speech are presumptively unconstitutional and must satisfy strict scrutiny.

To survive strict scrutiny, the State must show:

• a compelling interest; and
• a regulation that is narrowly tailored and “actually necessary” to solve an “actual problem,” with no less speech-restrictive alternative (Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011)).

2. The State’s Litigation Strategy and Waiver

Notably, the Attorney General did not attempt to justify her enforcement efforts under strict scrutiny:

• In the district court, the State’s briefing was premised on the assertion that the speech was commercial and fraudulent, and therefore less protected.
• On appeal, the State similarly did not argue that the regulation of the plaintiffs’ APR-related speech could pass strict scrutiny if it were deemed noncommercial.

Given that the burden of justification under strict scrutiny rests with the State, this omission was fatal at the preliminary injunction stage. The Second Circuit treated the issue as effectively waived or forfeited:

• Because the State did not “specifically identify an actual problem in need of solving” and did not show that “the curtailment of free speech [was] actually necessary to the solution” (Brown, 564 U.S. at 799), it failed to carry its burden.
• The court referenced the stringent nature of strict scrutiny (NIFLA v. Becerra, 585 U.S. at 766) and applied a conventional rule of appellate practice: issues not sufficiently argued in the briefs are normally not addressed (Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)).

The panel therefore concluded that the plaintiffs had shown a likelihood of success on the merits of their First Amendment claim.

3. The Unreached Question: False or Misleading Noncommercial Speech

The Attorney General argued that APR-related statements were false or misleading under scientific and medical standards, and therefore regulable at least as “fraudulent” or deceptive.

However, because the court classified the speech as noncommercial and the State did not invoke a traditionally unprotected category like fraud as such (as opposed to “false or misleading commercial speech”), the Second Circuit deemed it unnecessary to decide:

• whether the statements are or are not scientifically accurate; or
• whether any narrower fraud-based doctrine could apply.

The court briefly noted that for noncommercial speech, content-based regulation of false statements is generally prohibited, outside historically unprotected categories like fraud or defamation (United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality); United States v. Stevens, 559 U.S. 460, 468 (2010)).

Thus, the issue of whether APR-related statements could be regulated under a fraud theory remains open for a fuller merits record, though the State did not develop that argument here.

D. Preliminary Injunction Factors Beyond Likelihood of Success

1. Standard and Type of Injunction

The Second Circuit applied the standard from Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008): a plaintiff must show:

1. likelihood of success on the merits;
2. likelihood of irreparable harm absent relief;
3. that the balance of equities tips in their favor; and
4. that an injunction is in the public interest.

The Attorney General argued that a “clear or substantial likelihood of success” standard should apply because the plaintiffs were seeking a mandatory injunction. The court rejected this, holding that the requested injunction is prohibitory, not mandatory:

• The Attorney General had not yet initiated enforcement against the NIFLA plaintiffs; the injunction prevents her from doing so on the basis of their APR-related speech.
• This preserves the status quo rather than ordering an affirmative change, so the standard likelihood-of-success test applies (A.H. ex rel. Hester v. French, 985 F.3d 165, 176 (2d Cir. 2021); Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020)).

2. Irreparable Harm

The court’s irreparable-harm analysis is straightforward and tracks settled law:

• “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (Elrod v. Burns, 427 U.S. 347, 373 (1976).)
• Where a plaintiff shows a likelihood of success on a First Amendment claim, they have necessarily shown irreparable harm (Green Party of N.Y. State v. N.Y. State Bd. of Elections, 389 F.3d 411, 418 (2d Cir. 2004); A.H. ex rel. Hester, 985 F.3d at 184).

Because the NIFLA plaintiffs had already curtailed their speech due to fear of enforcement, and because the court found a likely constitutional violation, the irreparable harm element was clearly met.

3. Public Interest and Balance of Equities

Where the government is the opposing party, the “balance of equities” and “public interest” factors merge (see New York v. U.S. Dep’t of Homeland Sec., 969 F.3d 42, 58–59 (2d Cir. 2020)).

The court emphasized:

• “Securing First Amendment rights is in the public interest” (N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013)).
• No public interest is served by maintaining an unconstitutional policy when constitutional alternatives exist (Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d Cir. 2020)).

Given the strong presumption against content-based restrictions on noncommercial speech and the weakness of the State’s justification at this stage, the court held the public interest favored preliminary relief.

V. Complex Concepts Simplified

1. Younger Abstention (Simplified)

Younger is about when federal courts must “stay their hand” and avoid interfering with ongoing state proceedings, usually to respect state sovereignty and avoid duplicative litigation.

In simple terms:

• If you are being prosecuted or subjected to state enforcement, you generally must raise your federal constitutional objections in the state case, not in a parallel federal lawsuit seeking to stop that prosecution.
• But if someone else is being prosecuted, and you are chilled from exercising your own rights as a result, you can often go to federal court to protect your own speech, as long as you:
  • are not trying to shut down the state case; and
  • have your own independent rights at stake.

2. Commercial vs. Noncommercial Speech

Think of commercial speech as:

• Advertising or promotion of goods/services;
• Where the speaker stands to make money from the audience’s response; and
• The speech is mainly about selling something.

By contrast, noncommercial speech is:

• Speech about ideas, politics, religion, social issues, etc.,
• Even if it touches on products or services, as long as the purpose isn’t to make money for the speaker.

Nonprofits often operate in a gray zone, because:

• They may provide services (like medical care or legal advice),
• But those services can be free and motivated by ideology or religious beliefs rather than profit.

Courts look at factors like:

• Is it an advertisement?
• Does it mention a specific product or service?
• Is the speaker trying to make money or increase revenue?

All of these, taken together, determine whether the speech is commercial or not.

3. Strict Scrutiny vs. Intermediate Scrutiny

• Strict scrutiny (applies to content-based regulation of noncommercial speech):
  • Government must show a compelling interest (e.g., national security, preventing imminent violence).
  • Law must be narrowly tailored—no broader than necessary; less-restrictive alternatives must be seriously considered.
  • Most laws fail strict scrutiny.
• Intermediate scrutiny (Central Hudson test for commercial speech):
  • Government interest must be “substantial.”
  • Regulation must “directly advance” that interest.
  • Regulation must not be more extensive than necessary—but this is a more forgiving standard than strict scrutiny.

4. Preliminary Injunctions

A preliminary injunction is like an emergency order that preserves the status quo while a case is litigated. Courts grant it only if:

• The plaintiff is likely to win in the end;
• The plaintiff will suffer harm that can’t be fixed later (like lost free speech); and
• The balance of harms and the public interest favor an early protective order.

Here, the court essentially said: “Because your First Amendment rights are likely being violated now, we will protect your speech while the case continues.”

VI. Potential Impact and Broader Significance

A. Impact on Younger Abstention Doctrine

The decision refines how Younger applies to third-party federal plaintiffs:

• It confirms that federal courts remain open to individuals and organizations whose speech is chilled by an enforcement action against others, so long as:
  • they are not parties to the state case;
  • they assert independent rights, not purely derivative of the state defendant’s rights; and
  • they are not seeking to enjoin or halt the state proceedings.
• It limits the reach of Spargo by clarifying that “inextricably intertwined” interests are present only where the federal plaintiff’s rights are entirely derivative of the rights of the state defendant and the relief sought would effectively block the state proceeding.

Practically, this means:

• Advocacy organizations and nonprofits whose speech is chilled by a high-profile state enforcement action against similarly situated entities may bring pre-enforcement challenges in federal court.
• States attempting to leverage one “test case” to chill a broader field of speech may face simultaneous federal litigation by nonparties.

B. Impact on Regulation of Nonprofits and Advocacy Organizations

The commercial/noncommercial speech holding could have wide-ranging implications beyond the abortion context:

• Many nonprofits—across diverse ideological spectra—provide free informational and referral services about controversial topics: reproductive health, gender-affirming care, immigration, labor organizing, harm-reduction services, etc.
• The Second Circuit’s reasoning suggests that where:
  • the organization does not charge for services,
  • does not receive remuneration tied to particular referrals, and
  • its speech is ideological, religious, or advocacy-driven,
  its speech will likely be treated as noncommercial.

This constrains states’ ability to rely on consumer protection statutes to regulate such speech under the more permissive commercial-speech framework. Efforts to regulate “misinformation” by nonprofits may often have to satisfy strict scrutiny, a very demanding standard.

C. Tension with Other Circuits and Future Litigation

The decision also contributes to emerging tensions in how courts treat:

• APR-related speech in particular; and
• the broader boundary between commercial and noncommercial speech for nonprofits.

District courts in the Ninth Circuit confronted similar APR cases and, on different records, found the speech commercial, emphasizing evidence of fundraising or direct provision of APR. The Second Circuit took care to distinguish those cases on factual grounds, but as more circuits confront similar disputes, there may be:

• a growing divergence in how APR-related speech is classified; and
• a broader circuit split about what kinds of nonprofit referral and advocacy speech are commercial.

Such tensions may invite Supreme Court review in a future case, especially given the Court’s recent interest in both commercial speech and abortion-related regulation.

D. Implications for State Consumer Protection Strategies

For state attorneys general and regulators, the decision signals:

• Heightened First Amendment risk when using general consumer-fraud statutes to target speech by nonprofits and religious organizations, especially about contested scientific or medical issues.
• Courts may demand a careful distinction between:
  • speech that is truly advertising for paid services (e.g., a clinic that sells a treatment and advertises it to increase revenue); and
  • speech that is informational and ideological, even if it has practical consequences and eventually leads to someone else providing a paid service.

States may need to:

• Tailor consumer-protection enforcement to acts that clearly fall within commercial conduct (e.g., billing practices, direct advertising of one’s own paid services); and
• Consider alternative, less speech-restrictive strategies to combat what they view as harmful or misleading advocacy, such as:
  • Government counter-speech and public education;
  • Disclosure requirements carefully tailored to professional contexts (bearing in mind NIFLA v. Becerra);
  • Traditional fraud prosecutions in cases of knowing deceit that satisfy narrow historical limits.

E. Narrowness of the Holding

It is critical to note the decision’s limits:

• The court repeatedly emphasizes that its analysis occurs on the preliminary injunction record, and that its holding is about likelihood of success, not a final decision on the merits.
• The panel does not decide whether APR is safe or effective, nor whether specific APR claims are scientifically true.
• The opinion does not foreclose the possibility that:
  • a different factual record could reveal economic motivations converting similar speech into commercial speech; or
  • the State might, at a later stage, develop a strict-scrutiny defense or a narrow fraud theory more tailored to demonstrably false statements.

Nonetheless, as a practical matter, the opinion establishes a strong default presumption that religiously motivated, free-of-charge informational and referral speech by nonprofits is noncommercial, and therefore highly protected.

VII. Conclusion

Nat’l Inst. of Family & Life Advocates v. James is a consequential Second Circuit decision on two fronts:

1. It reinforces a narrow reading of Younger abstention, holding that federal courts must hear First Amendment claims by third-party nonprofits whose speech is chilled by a related state enforcement action, absent direct interference with the state case or purely derivative rights.
2. It solidifies the principle that nonprofit, religiously motivated informational and referral speech—offered for free, without remuneration or direct provision of services—is noncommercial speech. Regulations targeting such speech are presumptively unconstitutional and must survive strict scrutiny.

For litigants and regulators alike, the case underscores:

• the importance of careful factual development regarding economic motivation and the structure of nonprofit operations;
• the high level of protection afforded to advocacy and religious speech, even when it touches on medical or scientific claims; and
• the limited circumstances in which federal courts will abstain from adjudicating constitutional claims due to parallel state actions.

As debates intensify over how governments may regulate “misinformation,” especially around health and medicine, NIFLA v. James will likely serve as a key precedent in the Second Circuit—and a touchstone in the broader national conversation about the First Amendment, nonprofit advocacy, and state consumer protection powers.