Idaho is one of those states that enacted draconian abortion bans after the Supreme Court’s Dobbs decision. Here’s how the law in that state is described by the Center for Reproductive Rights:
On August 25, Idaho began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy, with exceptions for the life of the pregnant person and for survivors of rape and incest who have reported the incident to law enforcement. following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization. However, the state is prohibited from criminalizing medical providers who provide abortion care to pregnant people in emergency situations pending the outcome of the Department of Justice’s lawsuit against Idaho on the theory that the trigger ban violates the requirement of the federal Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires hospitals that receive Medicare funds to provide stabilizing treatment to patients regardless of their ability to pay.
. . .Idaho retains targeted regulation of abortion providers (TRAP) laws related to facilities, which was held to be unconstitutional, and reporting. Idaho law continues to restrict the provision of abortion care to licensed physicians and still restricts the use of telemedicine for medication abortion. Providers who violate Idaho’s abortion restrictions may face civil and criminal penalties.
The criminalization of abortion in this way has caused a chilling of speech about abortion. A report from the Academic Freedom Alliance (click screenshot below), notes that the University of Idaho’s legal department tried to regulate faculty speech on the topic:
The Academic Freedom Alliance (AFA) today sent a letter to the University of Idaho responding to a guidance memo from the university’s general counsel regarding faculty compliance with the state’s new abortion laws, particularly the memo’s guidance that faculty should “remain neutral on the topic” of abortion during classroom discussions. The general counsel’s memo warns that, due to new state laws against abortion, those found to be “promoting” abortion could face penalties including mandatory loss of state employment, bars on future state employment, prison time, and fines.
The University of Idaho is a state University, and thus academic speech falls under the aegis of the First Amendment. Promoting choice (i.e., advocating breaking state law) is not a violation of the First Amendment, and, if there is a discussion of this in the classroom, there can be no Constitutional way to prevent a professor from expressing his or her opinion one way or the other.
The AFA’s letter to the University, from Keith Whittington, chair of the academic committee, lays out the reasons why this chilling of speech is unconstitutional:
It is well established that public universities like the University of Idaho are constrained by the First Amendment of the U.S. Constitution. The federal courts have specifically recognized that classroom speech by professors is constitutionally protected. Keyishian v. Board of Regents, 385 U.S. 589 (1967); Demers v. Austin, 746 F.3d 402 (9th Cir. 2014). The Demers court specifically held that “teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor” at the university level is protected under the First Amendment. The United States Court of Appeals for the Sixth Circuit just months ago emphatically reaffirmed that the First Amendment does not tolerate state actions “that cast a pall of orthodoxy over the classroom” or that “stifle[s] a professor’s viewpoint on a matter of public import.” Quite simply, “the First Amendment protects the free-speech rights of professors when they are teaching.” Meriwether v. Hartop, 992 F.3d 492, 505 (6th Cir. 2021).
As for the law’s prohibition of the use of public funds (i.e., professorial salaries) to “promote abortion,”) that too is unconstitutional.
It is true that the Idaho Code § 18-8705 prohibits the use of public funds to “promote abortion,” but construing that statutory language to require state university professors to “remain neutral on the topic” is a vast overreach and inconsistent with the requirements of the First Amendment. The U.S. Supreme Court has emphasized that a law is constitutionally invalid “if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S.
. . . When Congress criminalized not only conduct involving criminal facilitation or solicitation but also pure speech involving abstract advocacy, the courts have concluded that the First Amendment requires that those statutes be applied narrowly so as to exclude pure speech such as the kind of promotion of abortion that might occur in a classroom discussion. “The statute’s plain language is ‘susceptible of regular application to protected expression,’ reaching vast amounts of protected speech uttered daily.” United States v. Hernandez-Calvillo, 39 F.4th 1297, 1313 (10th Cir. 2022). In such circumstances, the restriction of classroom teaching on topics relating to abortion through the criminal law is impermissible under the First Amendment.
Ergo, if a professor says, “I favor unlimited abortion,” she is not violating the law. You might think it would be different if the professor tells students that if they are pregnant they should get abortions, but I suspect that, too, is legal speech, for the prof is merely expressing an opinion and not facilitating or soliciting abortion.
In the end, the AFA says it takes no position on the legal regulation of abortion, but asks that the University of Idaho rescind its “required neutrality” regulation in favor of telling faculty that they have the right of free expression, including with respect to this law. The AFA also “calls on state official to swiftly clarify that the state criminal law should not be interpreted to apply to classroom discussions that do not involve the facilitation or solicitation of unlawful acts”:
The general counsel’s guidance sends a chilling message to every member of the faculty who must discuss difficult and controversial material relating to abortion as part of their teaching duties. The statute itself might not recognize “academic freedom [as] a defense to violation of law,” but the First Amendment is an overriding limitation on the power of the state legislature to impose such a restriction on classroom teaching in state university classrooms.