University of Idaho issues abortion gag order

In an email to employees of the University of Idaho, the institution’s general counsel warned them against violating various state anti-abortion laws – effectively issuing a gag order on discussions of abortion within the institution. The guidelines reflect an extreme level of caution in the face of vague and unconstitutional prohibitions and are likely to chill free speech on campus.

While “academic freedom” supports classroom discussions related to abortion, the email reads, those discussions should be limited to what is “relevant to the class topic.” University employees “must remain neutral themselves,” the email warns, adding that failure to do so could expose employees to prosecution, imprisonment and a “permanent ban from ‘to exercise future employment in the State’.

Sent just after 4 p.m. Friday with the subject line “Advice on Abortion Laws,” the email covers everything from constraints on class discussions to restrictions on reproductive health counseling for students. by notice that the school is ceasing to provide any “standard birth control pills”.

“In every conceivable aspect of Idaho law, the university has taken the most risk-averse position that somehow tears academic freedom apart.”

Lucinda Finley, a professor at the University at Buffalo School of Law who specializes in reproductive rights, women, and the law, said the email displays a “surprisingly risk-averse” attitude to the detriment of students, staff and university professors and the very notion of academic freedom.

The university’s advice comes as states like Idaho have taken extreme steps to ban abortion following the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, which overturned nearly 50 years of federal abortion rights protection. In 2020, Idaho passed a near-total abortion ban that was triggered by the Dobbs decision. The following year, the state passed sweeping legislation to ban all public funding to support abortion, which included a ban on “promoting” abortion by any public employee. The law also prohibits school health clinics from dispensing emergency contraception except in cases of rape, a possible violation of federal health care law. The dismantling of abortion rights in Idaho has also revived a so-called zombie law from 1972 that makes it a crime for anyone other than licensed physicians or licensed health care providers to offer or do advertising for services “for the prevention of conception”.

Teenagers protest the Supreme Court ruling on abortion in Driggs, Idaho on July 2, 2022.

Photo: Education Images/Universal Images Group via Getty Images

In the email, the university’s general counsel’s office acknowledged that the wording of this 1972 law is “not a model of clarity” and that what is meant by preventing conception “is unclear and has not been tested by the courts”. The office advised the university to take “a conservative approach here” and “not provide standard birth control itself.” While birth control counseling may continue through health care providers at student health centers, the email says the university should limit itself to providing “condoms in the intended to help prevent the spread of STDs, but not for birth control purposes”.

Employees who “regularly counsel or interact with students in any way in the course of their employment” should be wary when discussions of reproductive health arise, the email states. “If a discussion moves into this area, students should be made clear that Idaho law prohibits the university and its employees from counseling in favor of abortion, recommending abortion, or promoting abortion. ‘abortion,’ it read. “The earlier this happens in a conversation that brings up the topic, the less risk there is to the employee.”

With “certain limitations,” employees can direct students to outside sources of information and participate in class discussions “on topics related to abortion or contraception,” the email says, but only in the case of “instructor neutrality”. Academic freedom, she warns, is no defense against any violation of the law and those who “conduct or engage in discussions in violation of these prohibitions” risk prosecution.

The dismantling of Roe c. Wade over the summer has brought to the fore issues of vague, overbroad, or ill-defined anti-abortion laws, like those in Idaho that seem to give the university’s general counsel heartburn. . The overnight change in federal abortion protections and the onslaught of a myriad of state bans and restrictions are a challenge for colleges and universities across the country, reports Inside Higher Ed. “It will be a bumpy ride before everything is resolved from a legal standpoint,” said Ona Alston Dosunmu, president and CEO of the National Association of College and University Lawyers.

University of Idaho Deputy General Counsel Kim Rytter did not respond to emails from The Intercept.

Idaho law “declares that no public funds ‘shall be used in any way to…promote abortion,'” wrote Jodi Walker, executive director of university communications, in an email to The Intercept: “The article does not specify what is meant by promoting abortion, however, it is clear that university employees are paid with public funds. Employees who engage in their work in a way that promotes abortion could be considered to promote abortion…. We support our students and employees and academic freedom, but understand the need to abide by the laws established by our state.

But according to Finley, the law professor, on some points the advice is simply wrong – particularly on the issue of contraceptives and the state law of 1972. Access to contraception remains federally protected ( at least for now), and the parts of the law that prohibit posting “any notice or advertisement” or “otherwise assisting” in “preventing conception” are similar to those the Supreme Court determined as violating the protections of free speech. These provisions of Idaho law, to which the university appears to capitulate, are “patently unconstitutional,” Finley said.

The university’s director of communications did not respond to questions about the general counsel’s guidance and the 1972 law.

Finley is also troubled by advice that would require teachers to be “totally neutral” when discussing abortion in class. What if you’re a law professor, she says, and you criticize Judge Samuel Alito’s majority opinion in Dobbs while teaching a class? “Are you violating college guidelines?” It certainly doesn’t violate state law – at least I don’t think it does. Does it use state money to advocate for abortion? ” she asks. “This guidance seems to imply that a professor teaching the Dobbs case should not criticize the case’s reasoning.”

“In every conceivable aspect of Idaho law, the university has taken the most risk-averse position that kind of tears academic freedom apart,” Finley said. The councils ‘leave their students at risk of life-threatening or health-threatening pregnancy complications in extremely precarious positions’.

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