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:
“18-8705. USE OF PUBLIC FUNDS FOR ABORTION PROHIBITED.
(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.