University of Idaho warns employees against discussing abortion, providing birth control

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The University of Idaho’s general counsel advised faculty and staff that they could face legal punishment if they spoke out in support of abortion. The guidance came a month after a federal judge blocked part the state’s abortion ban, which would have made illegal nearly all abortions.  

Key Player

The University of Idaho (UI), a public institution located in Moscow, has branches in Boise, Coeur d’Alene, and Idaho Falls.

Further Details

In March 2020, Gov. Brad Little (R) signed Senate Bill 1385 into law. 

The so-called trigger law made providing an abortion punishable by up to five years in prison, unless it were performed to prevent a pregnant woman from dying, or in cases of rape or incest. It would have taken effect 30 days after “the issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion,” the law states. 

In May 2021, Little signed the No Public Funds for Abortion Act into law, prohibiting, among other things, public schools and universities from providing, counseling in favor of, or referring to abortion, as well as distributing contraceptives.

The trigger law would have taken effect on Aug. 25, 2022, two months after the U.S. Supreme Court voted 6-3 to overturn Roe v. Wade, the 1973 case that established the constitutional right to abortion. 

But one day prior, U.S. District Judge B. Lynn Winmill, nominated by former President Bill Clinton, issued a preliminary injunction, ruling that the law violated the federal Emergency Medical Treatment and Labor Act, which requires medical care when a pregnant person’s life or health is at stake, specifically in Medicare-funded hospitals. The lawsuit demanding that the trigger law be suspended had been filed by the Department of Justice on Aug. 2. 

While a strict abortion law could remain, Winmill wrote that doctors could not be punished for performing abortions to protect the health of a pregnant patient, The New York Times reported. However, as the injunction remains in place until the lawsuit is resolved, it only applies to abortions in emergency situations, outlawing most abortions in the state, the Idaho Statesmen reported. 

On Sept. 23, UI’s general counsel emailed a memo to university employees, instructing them to abide by new abortion-related restrictions under the state’s trigger law and No Public Funds for Abortion Act.

“University of Idaho is committed to operating within the confines of laws of the state of Idaho which restrict expenditures of funds and activities of university employees in the areas of abortion and contraception,” the memo states. “The Office of General Counsel is distributing this memorandum summarizing these laws, in the context of university operations, to assist university employees in complying with the restrictions.”

Employees were prohibited from counseling in favor of abortion, promoting abortion, providing institutional facilities or institutional funding for abortion or abortion training, giving referrals for abortion, contracting with abortion providers, and distributing emergency contraception as classified by the U.S. Food and Drug Administration.

Staff members were notified that if they were found in violation of these rules, they could face various punishments, including a misdemeanor or felony conviction with imprisonment and fines, mandatory reimbursement of the funds that were used in the prohibited activity, termination of state employment, and a permanent ban from future state employment.

While the memo listed certain exceptions, such as discussions on abortion related to course material and providing condoms to prevent STDs as opposed to contraception, UI noted uncertainty surrounding the abortion laws.

“While the topic of abortion (including facilitating a miscarriage) are addressed [in the legislative text], the scope of what is meant by ‘prevention of conception’ and to have ‘offered services by notice, advertisement, or otherwise . . .’ is unclear and untested in the courts,” the memo reads. “Since violation is considered a felony, we are advising a conservative approach here, that the university not provide standard birth control itself.”

Outcome

Reactions to the memo

Jodi Walker, executive communications director at UI, told The Washington Post that the memo was sent to ensure faculty and staff were following the laws. 

“This is a challenging law for many and has real ramifications for individuals in that it calls for individual criminal prosecution,” Walker said. “This guidance was sent to help our employees understand the legal significance and possible actions of this new law passed by the Idaho Legislature.”

Walker told PBS NewsHour, “We support our students and employees, as well as academic freedom, but understand the need to work within the laws set out by our state.” Jim Craig, general counsel at UI, did not respond to a request for comment and did not attach his name to the memo, The Post reported. 

A UI employee, who spoke on the condition of anonymity, told The Post she had cried in her office after receiving the memo. “I think there’s a lot of fear. I think about the resident hall advisers. This is the kind of advice they give out if students are sexually active and not ready for a family,” the employee said. “Now it’s the kind of thing that could get them fired and charged with a felony.”

On Sept. 26, Rebecca Gibron, the CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, condemned the state laws and UI policy. 

“We always knew extremists wouldn’t stop at banning abortion; they’d target birth control next. The University of Idaho’s announcement is the canary in the coal mine, an early sign of the larger, coordinated effort to attack birth control access,” she stated. “Here in Idaho, these attacks have already begun.”

The next day, White House Press Secretary Karine Jean-Pierre tweeted, “Nothing under Idaho law justifies the university’s decision to deny students access to contraception. But the situation in Idaho speaks to the unacceptable consequences of extreme abortion bans,” adding, “The overwhelming majority of Americans believe in the right to birth control, as well as the right to abortion, without government interference. These policies are extreme and backwards.”

Implications for Free Speech

Some experts expressed concern that the laws violated the First Amendment. 

“This is going to have a very broad impact. It’s going to have a very strong chilling effect on free speech,” Mike Satz, an attorney and former faculty member and interim dean at the UI College of Law, told PBS NewsHour. “I’m afraid it’s going to scare people from going to school here or sending their kids to school at Idaho institutions.”

The Foundation for Individual Rights and Expression (FIRE), a free-expression nonprofit, called UI’s abortion policies unconstitutional. “The university must defend—not erode—First Amendment rights on campus. It must begin by publicly retracting this unlawful policy,” FIRE stated. “Continuing to transgress well-established First Amendment rights effects censorship on campus and will subject your institution to civil liability. This chilling effect is especially pronounced as faculty have been cautioned their teaching may yield criminal consequences if it is deemed to ‘promote’ abortion.”

FIRE also cited legal precedent and previous court decisions upholding First Amendment rights at public universities.

“The memo’s guidance notwithstanding, the First Amendment binds public universities, requiring U of I to ensure any policies implicating student and faculty expression comport with its constitutional obligations,” the letter states. “Additionally, the United States Court of Appeals for the Ninth Circuit—the decisions of which are binding on U of I—has squarely held that the First Amendment protects faculty members’ speech ‘related to scholarship or teaching’ when it addresses matters of public concern.”

FIRE Attorney Adam Steinbaugh said the policy was unlawful. “Faculty members don’t shed their First Amendment rights at the classroom door. It isn’t just misguided to keep faculty from speaking freely — it’s illegal,” he stated. “No statute can authorize a public university to censor pedagogically relevant classroom discussion. Speech about abortion — legal or not — cannot be limited based on its viewpoint.”

The American Association of University Professors (AAUP) also called on UI to revoke the policy. “Under principles of academic freedom widely endorsed by the higher education community, college and university teachers are entitled to freedom in the classroom in discussing their subject,” the AAUP stated. 

“Any attempt to limit that freedom must be soundly rejected by the faculty, the administration, the board, and all who care about the core academic mission of the institution. The proposed guidance here is indefensible from the point of view of public health, public education, academic freedom, free speech, and even simple logic,” said AAUP.