Idaho abortion law gags staff free speech at universities

“I never thought teaching in the United States would feel like this”

The University of Idaho’s general counsel last Friday afternoon sent out an email to professors and staff warning them about how to comply with a 2021 Idaho abortion law, leaving educators in confusion and putting a “chilling effect” on speech.

The memo states that the law prohibits university employees from promoting abortion, counseling in favor of abortion, and advertising or promoting services for abortion or for the prevention of conception, among other things. It also specifies that the penalties for violating this law can include loss of their jobs, permanent bar from future state employment and even felony convictions.

The memo specified that the law applies to classroom discussions of topics related to abortion, even if they’re relevant to what’s being studied.

“Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution,” the memo reads.

The email has set into motion frantic text messages and “a sense of general panic” among faculty, according to one professor who spoke on the condition of anonymity for fear of losing their job.

“People are afraid to even put it on social media,” they said. “Like, are we even allowed to say the word ‘abortion’ on campus?” The professor said they may have to take out assignments related to reproductive justice that were on the syllabus for this semester.

“I never thought teaching in the United States would feel like this,” they said.

“Blatantly unconstitutional”

Mike Satz, a former law professor and associate dean at University of Idaho, called some of the directives in the memo blatantly unconstitutional and said, “it runs against all principles of academic freedom.” He pointed to the parts of the law that says university employees cannot “counsel in favor of abortion” or “promote abortion” as speech that is protected by the First Amendment. Satz said the memo violates the rights of students to get information and the rights of faculty to give information.

What’s worse is the chilling effect of the memo, he said. Even though it’s “blatantly unconstitutional,” the memo is likely to make educators and staff overcautious to the point of avoiding the topic altogether. This alone can also be the basis for a first amendment complaint, Satz said.

Emily Walton, a co-founder of The Idaho 97 Project along with Satz, wondered how this law would affect student activities and speech. It may even pave the way for future restrictions. “This sets a precedent,” Walton said. “At some point another person can come along and say, ‘Here’s more things you can’t talk about.’”

Satz said the general counsel of the university isn’t incorrectly and unconstitutionally interpreting the law in its memo: it’s the law itself that’s unconstitutional. “I’m pretty sure the lawyers know that when they wrote this, they’re in a really tough bind.”

The law in question is the No Public Funds for Abortion Act,  which prohibits any taxpayer money from funding abortions or the promotion of abortions and to prohibit public employees from encouraging abortions. The law was passed by the Idaho Legislature in 2021, and went into effect in July.

According to Jodi Walker, executive director of communications for the university, the memo was sent to help faculty and staff understand how the law could affect them. Walker said that while the law is vague on what promoting abortion means, it is clear that university employees are paid with public money.

“Employees engaging in their course of work in a manner that favors abortion could be deemed as promoting abortion,” Walker said in a statement sent to RANGE. “While abortion can be discussed as a policy issue in the classroom, we highly recommend employees in charge of the classroom remain neutral or risk violating this law.”

University of Idaho legal guidance on abortion speech by RANGE Media on Scribd

Neutrality for whom?

The thing with neutrality is that it’s subjective. Satz said that it’s impossible to define neutrality with laws that limit speech since the concept of neutrality iss up to individual interpretation. He called the laws “unconstitutionally vague and impossible to police in a classroom.”

Another University of Idaho professor, who also spoke on the condition of anonymity for fear of losing their job, echoed the concern that neutrality isn’t defined: “Whose version of neutral are we talking about?” they asked.

This professor said they already consider themselves pretty neutral in the subject they teach because it’s more important to educate students than to get involved in class debates. However, they’re now unsure whether they can even teach certain topics related to abortion and reproductive justice anymore. They questioned whether even sharing an article about abortion with a student would be considered a violation of the law.

“You might get charged with a crime if someone decides youre promoting abortion,” they said. “… Will I go to jail if I’m not neutral enough?”

In addition to concerns of constitutionality, the memo goes directly against the university’s academic freedom policy, the earlier professor noted. The Idaho State Board of Education rewrote their academic freedom policy this year and the University of Idaho recently adopted that version of it.

University of Idaho is not the only university dealing with this: Boise State also sent out a memo to their faculty, although it was framed as a “Frequently Asked Questions” and specified that it was not legal advice.

On the question of “Am I allowed to state my opinion, attend public events, regarding these issues?” BSU had this to say, “As is always the case, private individuals acting outside of their employment have First Amendment rights to political speech. Faculty may also have protection with regard to academic freedom as relates to scholarship.”

While that seems authoritative, the FAQ follows up with much murkier language on the limits of free speech: “These instances can be very fact-based and vary based on the content and circumstances of speech whether or not the speech is protected speech … In general such speech is protected if acting in one capacity as a private citizen (outside work hours not utilizing university resources, etc.)”

Near blanket birth control ban

The Idaho law and the U of I memo additionally restrict access to birth control in almost all forms. The law states that any person other than a licensed physician or health care provider, who advertises any services, medicine or means for producing a miscarriage or abortion, “or for the prevention of conception,” is guilty of a felony.

The memo acknowledges that the language of the law isn’t “a model of clarity,” but since a violation of it is considered a felony, they’re advising the university to stay on the safe side and not provide standard birth control. The law also says they cannot dispense any emergency contraception, like morning after pills, except for in the case of rape. (Morning after pills, like Plan-B, are not actually a form of abortion medication, they generally work by stopping ovulation before fertilization.)

As for condoms, the memo specifies: “The university can provide condoms for the purpose of helping prevent the spread of STDs but not for purposes of birth control.”

What comes next

Satz said the law and the way universities are handling the free speech issues are ripe for first amendment lawsuits. He said he had talked to several attorneys already who were eager to take on a case like this and suggested faculty members pool resources or work with their union to hire attorneys to represent them.

Faculty unions in Idaho, however, lack teeth in Idaho because it is a right-to-work state and teachers are classified as “essential workers” and therefore unable to go on strike.

We asked the first professor we talked to what their plan was for teaching in the meantime:

“I don’t know,” they said with a sigh. “I guess my plan is to teach students the way I’ve always taught them, which is open, honest and fact-based, and hope I don’t lose my entire career.”

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