University of Idaho Warns Professors About Discussing Abortion

There has been much talk in the last week about a letter from the University of Idaho General Counsel’s Office warning professors about discussing abortion. The warning is outgrowth of the No Public Funds for Abortion Act (Idaho Code Section 18-8701 through Section 18-8711). However, in my view, the media’s interpretation of the letter has exceeded any reasonable construction of the law. The law does not prevent professors from discussing abortion or supporting the right in their classes. Such a bar would be a serious denial of free speech and academic freedom principles. If that were the intention of sponsors, it should be denounced by people on both sides of this abortion debate. However, I do not see the evidence (as claimed by some) that this is a bar on professors either discussing abortion or expressing their support for the right.

The critical section does refer to those who “promote” abortion. However, this is in a section clearly directed at the referral and assistance in actual abortions. Indeed, that word is sandwiched between other clauses that are clearly referencing the performance or facilitation of abortions:


(1) No public funds made available by the state, a county, a city, a public health district, a public school district, or any local political subdivision or agency thereof and distributed by any institution, board, commission, department, agency, official, or employee of the state, a county, a city, a public health district, a public school district, or any local political subdivision or agency thereof shall be used in any way to provide, perform, or induce an abortion; assist in the provision or performance of an abortion; promote abortion; counsel in favor of abortion; refer for abortion; or provide facilities for an abortion or for training to provide or perform an abortion.”

At most, this is ambiguous where a court is likely to adopt the narrower meaning under the interpretative canon of noscitur a sociis. Courts will interpret terms like “promote” in light of other terms that appear in the same provision (“it is recognized by its associates”).

I think the provision is sufficiently clear that this is not a bar on the discussion of abortion or the expression of support for Roe v. Wade or the right of abortion.

The unsigned email from the University of Idaho’s Office of the General Counsel does not claim the clarity referenced by some pundits. Rather, it says that the enforcement or interpretation of the law “remains unclear.” In light of that claimed ambiguity, the office cautions that abortion and similar topics “should be approached carefully” and be limited to relevant classroom instruction.  Thus, if the subject is relevant to the classroom, it is not saying that abortion cannot be discussed.

However, one line in the email is particularly concerning:

“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.”

I do not see the requirement of faculty to be “neutral” in such discussion as a legal matter.

The Idaho law should have been drafted more clearly and expressly recognized that the law is not meant to curtail academic freedom in professors expressing support or opposition to abortion rights. The inclusion of the word “promote” without limiting language should not have made the final version of this law.

The letter triggered alarm on the Idaho faculty. I cannot speak to the intent of the legislators. Idaho has previously had laws struck down under the First Amendment, including an “AG-Gag” law outlawing undercover investigations into agriculture operations. However, there appear ample legal arguments to protect those faculty who continue to speak from one perspective of the right to abortion.

That is not to say that professors should not seek balance. I personally approach such sensitive subjects in a way that presents both sides. If I have a strong view of a case or doctrine in prior writings, I will state so for full disclosure but then work hard to give the opposing side. Indeed, I often spend more time presenting views with which I or the class may disagree to ensure that the class considers such issues fairly. However, I feel compelled to be clear about any personal bias or prior position on legal doctrines or cases.

In the context of the section, promote does not seem to be synonymous with support but facilitate or direct in terms of actual abortion services. As noted by Eugene Volokh, this is not a new issue. In U.S. v. Williams, a 2008 case involving a statute that made it a crime to “advertise[], promote[], present[], distribute[], or solicit[]” child pornography (or material purported to be child pornography). In context, Justice Scalia held, “promote” should not be read to cover mere advocacy:

“[T]he statute’s string of operative verbs—”advertises, promotes, presents, distributes, or solicits”—is reasonably read to have a transactional connotation. That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography—via reproduction or physical delivery—from one person to another. For three of the verbs, this is obvious: Advertising, distributing, and soliciting are steps taken in the course of an actual or proposed transfer of a product, typically but not exclusively in a commercial market. When taken in isolation, the two remaining verbs—”promotes” and “presents”—are susceptible of multiple and wide-ranging meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis—which counsels that a word is given more precise content by the neighboring words with which it is associated. “Promotes,” in a list that includes “solicits,” “distributes,” and “advertises,” is most sensibly read to mean the act of recommending purported child pornography to another person for his acquisition.

[T]he term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.”

I do not believe that the General Counsel’s Office was intentionally seeking to alarm or trigger a backlash. Such lawyers often gravitate to the most cautious interpretative approach to avoid any risk for clients or employees. However, FIRE is correct in calling for the office to rescind the letter to reinforce the rights of free speech and academic freedom. Even without rescinding the letter, the university can clarify that faculty are not gagged under the law in voicing support for this right. My concern is that this letter can create a chilling effect on professors discussing this important issue in class.

Nevertheless, regardless of what the university may do, I simply think that the more sweeping interpretation would not be enforceable in an actual court challenge.

133 thoughts on “University of Idaho Warns Professors About Discussing Abortion”

  1. I’m sure they have already been thoroughly informed by say the third grade so no need to rehash what they already know.

  2. The University of Idaho is a public land-grant research university in Moscow, Idaho, and, as such, must strictly adhere to the Constitution, having no superior private property rights providing the sole power to “claim and exercise” dominion.

  3. I have NO DOUBT that the Christofacist foetus fetishists who drafted this law did indeed mean to SHUT UP abortion proponents.

  4. “N.N. thinks women have more ‘dignity’ in jail. And that’s where Dobbs decision is leading: “Jail for women and health-care workers’.”

    Another absurd argument by anonymous.

  5. This talk about doctors refusing to treat ectopic pregnancy is another dumb argument. This article has little difference from the previous one anonymous pushed to promote his failed argument.

    The excuse is doctors will be afraid. Afraid of what? Just because missed diagnosis is one of the biggest causes of malpractice suits for your medical doctor doesn’t mean the doctor stops making a diagnosis. Just because there is a risk of cutting the wrong duct in gallbladder surgery doesn’t mean surgeons don’t do gallbladder surgery.

    If the doctor is too afraid to do the surgery, he shouldn’t be your doctor. Moreover, if he doesn’t take care of the ectopic pregnancy and the patient ends up sick or dies, he has a malpractice suit where the only question is how much?

    This type of argument demonstrates how bad anonymous’s arguments are. They stoop to contrived studies and are ridiculous.

    1. S Myer:

      The propaganda that an ectopic pregnancy would be banned in any state has been debunked. There are zero laws, including trigger laws, that ban the treatment of ectopic pregnancies.

      The purpose of an abortion is to kill the unborn. Period.

      The purpose of treating an ectopic pregnancy is to remove an unviable fetus, who can never survive. The purpose is to remove the ectopic pregnancy, not to kill the fetus. Since it is always removed early in gestation, the fetus cannot survive.

      An ectopic pregnancy is a medical emergency, and can be fatal for the woman.

      Those who seek to remove all restrictions from abortion always go to unusual cases, or medial emergencies like ectopic pregnancies. Yet such medical reasons are covered under these laws.

      If people won’t tell the truth about an issue, then they clearly don’t have any confidence of winning their argument on the merits. If a poster lies to you, then he or she doesn’t want a good faith discussion with you, but is just trolling.

  6. No, your comment reflects a deeply seated misogyny and misandry that denies women and men’s dignity and agency, and lays bare a logical and legal fallacy, human rites were restricted under Roe past the age of viability. With Dobbs, in the best case, they are still restricted past the age of viability.

    That said, there is no mystery in sex and conception, a woman and man have four choices, and an equal right to self-defense through reconciliation. The wicked solution is neither a good nor exclusive choice.

  7. Jonathan: You have a problem. You have complained endlessly about “censorship” on Twitter and on university campuses but, judging from several comments on this blog, you have a similar problem right here at home. “Olly” quotes a reply from Darren Smith to him regarding deleted comments that says: ” Comments made previously by banned users and those in violation are summarily deleted”. Darren blames WordPress for a “flaw” in the “nesting design of the software”. He says he doesn’t think “anything that can be done on our part to correct this”. Hardly an adequate explanation. He suggests “not investing anytime into replies made by Anonymous users or those who appear to be previously banned or the comment is in violation of civility rules”. In recent days I have personally experienced how that “flaw” works. In trying to respond to users (who have not be previously banned) my direct replies to them have been deleted. If “free speech” means anything it means the ability means the ability to exchange views with people with whom you don’t agree .To delete those responses seems a violation of one of the fundamental principles of “free speech”.

    I know Anonymous (the insane) is probably an extreme example of someone who violates “civility rules”–his insane racist rants and his calls for certain people to be executed for “treason”. But you have complained about the “civility rules” on Twitter in banning Trump. I think you now realize there have to be rules on the limits of “free speech”. But your position now seems counterintuitive to your claim to be a “free speech absolutist”. You can’t have it both ways. Daren’s excuse that the blame is a “flaw in the nesting design of the software” is a cop out. The ultimate responsibility is yours.

    Personally, I welcome all comments and I would like to respond to those with whom I have a fundamental disagreement. Apparently, I can’t do that now because of your “civility rules”. That’s a violation of my “free speech”. rights. And I shouldn’t have to find out, as Darren suggests, who is banned and who is not. This is the fundamental problem you have to resolve. Either you really believe in “free speech” or you have chosen the limits you complain about on Twitter. Which is it going to be?

  8. There has long been criticism of the Democrat politicization of the public K-12 education system, along with academia. Every class has become politicized. The public education system is taxpayer funded, and many universities receive public funds, which means my tax dollars go towards indoctrinating students to become Democrats. I consider this an improper, and unequal, use of public funds.

    Why should professors discuss any topic in class, that is not relevant to the subject material? There are certainly classes in which the abortion debate are certainly relevant, including law, modern cultural anthropology, and women’s studies. The topic would not be relevant to most STEM classes, classic literature, and many other classes.

    Teachers and professors have come to feel entitled to proselytize to their captive student audience, and some go so far as to actively harass or academically punish students who hold different opinions. DEI, CRT, The 1619 Project, and more hard Left ideology is pushed into the education system to the point that there is outright racism. There is also viewpoint discrimination against Pro Life students and activists, with one infamous professor physically assaulting two young Pro Life activists. This has gotten out of hand.

    This is like employees demanding to politicize every single workplace, harassing fellow employees and customers over politics.

    Professors and teachers are in the workplace, and on the clock, during school hours. They are not, in fact, entitled to turn class time into political outreach, most especially not when the institution is fully or partially funded by taxpayers. They can go to marches and protests on their own time and dime, and hold impassioned discussions outside of class. However, we need to kick personal politics out of most classrooms, especially K-12.

    1. “Teachers and professors have come to feel entitled to proselytize to their captive student audience”

      Some do, but most don’t. Most just want to teach the course material. It would have been viewed as extremely unprofessional to proselytize to students where I taught. It sounds like this is the pretty much the case in the district my kids attend now.

      1. I strongly suspect you are right.

        Though teachers tend to lean left everywhere. they are not bat$hit crazy left everywhere.

        Regardless, this is inappropriate anywhere.

        There is some place for some politics in the classroom.
        Socialism has not worked anywhere. Most of the time the results are bloody.
        After students have been taught core material like the 3R’s
        history should be taught – what worked, what did not, and how we got to where we are today.

        Further the process of getting to where we are should be taught positively – because we are obviously better off than cave men, or the ancient egyptians, or even our founders. Those historical and political forces that have left us better off should be taught – positively. Those that have actually failed should be taught as failure.

  9. Turley disagrees with the legal advice given to college professors, but he doesn’t live in Idaho and doesn’t know about the mind-set of the court systems there. There should be a First Amendment right to discuss any topic at the college level. Academic discussions about abortion rights does not amount to promoting abortions, but NO ONE wants to be the test case for putting the university’s funding at risk, and there’s uncertainty that an Idaho court would rule that the First Amendment protects the freedom to teach at least the facts and history about abortions. Republicans are afraid of academic freedom, something that keeps getting proven over and over again–i.e., they lile about CRT all of the time, claiming that young white children are being taught to hate themselves. CRT is not taught below the university level. They’re also afraid of protections for LGBTQ people and others who are not straight, Christian and/or white.

    1. Critical Racists’ Theory (CRT) presumes diversity [dogma] (i.e. color judgment, class-based bigotry), including racism, sexism, ageism, etc., and normalizes color blocs (e.g. “people of color”), color quotas (e.g. “too many Jews”), and affirmative discrimination (e.g. Asian-Americans and other 1/2 people, People of Yellow, and other shallow judgments and labels) under the Pro-Choice ethical religion.

      Transgender spectrum individuals (e.g. homosexual) do not have greater rights under political congruence (“=”), than they did before. Political congruence is a milestone in affirmative discrimination with forward-looking collateral damage.

      Elective abortion is a wicked solution to a hard problem: keep women affordable, available, and taxable, and the “burdens” of evidence aborted, cannibalized, and sequestered in darkness.

      This is why Jews, Buddhists, Muslims, even atheists, women and men, and trans/homosexuals are coming forward to confront social progress ministered under Diversity, Inequity, and Exclusion (DIE) doctrine.

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