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Idaho "No Public Funds for Abortion" Act Doesn't Preclude Pro-Abortion Speech by Professors

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From Idaho Att’y Gen. Op. No. 23-04, released Sept. 15 but not widely reported:

The No Public Funds for Abortion Act comprehensively prohibits the use of public funds to, among other things, “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.” However, under a plain language interpretation of the Act applying appropriate canons of statutory construction, the Act does not prohibit university employees from speaking on abortion in their academic teaching or scholarship, even if that teaching or scholarship could be viewed as supporting abortion or abortion rights in general….

[T]he U.S. Supreme Court, in Garcetti v. Ceballos (2006), … held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, Garcetti also noted that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”

Indeed, the U.S. Supreme Court has stated that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian v. Bd. (1967). “That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Thus, the majority in Garcetti determined that “[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” … In Demers v. Austin (9th Cir. 2014), the court held that “Garcetti does not-indeed, consistent with the First Amendment, cannot-apply to teaching and academic writing that are performed pursuant to the official duties of a teacher and professor.” Similarly, courts in the Fourth, Fifth, and Sixth circuits, in addition to the Ninth Circuit, have held that Garcetti does not apply to professors at public universities while engaging in teaching and scholarship….

In applying [the] two-part Pickering v. Bd. of Ed. (1968) balancing test [applicable to government employee speech] …, there can be no doubt that speech related to abortion does address matters of public concern. In balancing that against the State’s interest in promoting the efficiency of the public services it performs through its employees, it is important to note that this issue deals with a relatively small subset of public employees—only those employees of public institutions of higher education engaging in academic scholarship and teaching. The interest of this small subset of employees, however, has what the U.S. Supreme Court has declared to be a “special concern of the First Amendment.” This interest is of such vital importance that “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.” …

In the same way that a public university cannot discipline a professor for failing to comply with the university’s preferred pronoun policy in the professor’s classroom, see Meriwether v. Hartop (6th Cir. 2021), the balancing test would likely make it unconstitutional for a state to prohibit professors from discussing abortion in the classroom or engaging in academic scholarship relating to abortion, even if some of that teaching and scholarship could be viewed as supporting abortion. If the Act were construed to prohibit that speech, the prohibition would likely be unconstitutional.

Nevertheless, … that issue is not reached because the plain language of the Act does not prohibit speech related to abortion in the context of academic teaching and scholarship…. The plain text of the Act does not prohibit public university employees from engaging in speech relating to academic teaching and scholarship that could be viewed as supporting abortion. The Act prohibits the use of public funds to “promote abortion” and to “counsel in favor of abortion.” The plain meaning of these terms do not prohibit professors from speaking on abortion in their teaching and scholarship, even if that teaching or scholarship could be viewed as supporting abortion….

“Counsel” is defined, in part, as “advice, esp. that given formally.” In the context of the Act, which is designed to prohibit the use of public funds for abortion, the plain meaning of the term “counsel” must refer to the counsel or advice one person gives to another person asking for advice or help with a specific situation. Academic teaching about abortion, discussing the arguments some have advanced in favor of abortion within the academic environment, and conducting academic scholarship relating to abortion would not be impacted by the term “counsel in favor of abortion,” since those activities do not relate to counseling a specific person in a specific circumstance in favor of abortion. Thus, a professor might violate the Act by advising a specific student during office hours to obtain an abortion, but would not violate the Act by discussing abortion in a favorable manner in class or in scholarship….

The term “promote” sometimes has a more generalized meaning than “counsel,” being defined as “further the progress of (something, esp. a cause, venture, or aim); support or actively encourage.” However, within statutory law, “promote” has also been interpreted with a meaning similar to the meaning of “counsel” discussed above. In U.S. v. Williams (2008), the U.S. Supreme Court held that the term “promotes,” in a statute criminalizing the pandering of child pornography, “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.’” Rather, the term “refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.” The court held that the statute which, among other things, prohibited the promotion of child pornography, “falls well within constitutional bounds.” … Just as the term “promote,” as used in the federal statute prohibiting the pandering of child pornography does not “refer to abstract advocacy,” the term “promote” in the Act also does not refer to the abstract teaching and scholarship of abortion conducted by university professors….

Based on this plain language interpretation, the Act does not prohibit any academic discussion in favor of abortion. While it is impossible to list every possible act that may be permissible, or that may run afoul of the Act, as examples only, a literature professor could assign students to read in class essays or literature discussing, or even advocating for, abortion without fear of violating the Act. An ethics professor could discuss abortion, and assign students to research topics of abortion, within a medical ethics course without fear of violating the act. A law school professor could teach about Roe v. Wade, Dobbs, and how states have regulated, or not regulated, abortion in the aftermath of Dobbs, and could even advocate that Roe was right and Dobbs is wrong, and that the State of Idaho’s laws regarding abortion should be changed, without fear of violating the Act. Professors can conduct academic scholarship, including research and writing, about abortion, even if that research or writing supports abortion, without fear of violating the Act….

{While it should go without saying, just as a professor could talk about his or her position on abortion as part of a relevant class discussion, students in the class would be equally free under the First Amendment to express their opinions on abortion, even if their opinions are opposed to the professor’s opinions, without facing adverse consequences from the professor (such as a lower grade).}

However, official activities by public university employees which do not constitute academic teaching or scholarship would be prohibited by the Act. As an example only, a professor or other university employee could not, during office hours, counsel a specific student to abort her baby, or refer that student to an abortionist in order to abort her baby. And a professor could not, as part of her academic research or teaching responsibilities, use public funds to participate in or assist with an abortion in another state….

This appears to contradict and, as a practical matter, supersede the University of Idaho general counsel’s Sept. 2022 guidance to professors on the subject. (I wrote back then that the Act should indeed not be seen as applicable to professor speech advocating for abortion generally, and I’m glad that the Idaho AG has made that view official.)

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