The University of Idaho General Counsel's Letter on Contraceptives

I think the letter's analysis as to contraceptives is inconsistent with the statutes, and with a binding Supreme Court precedent.

Keith Whittington blogged yesterday about the University of Idaho General Counsel's Office letter that said professors were limited in their classroom discussions of abortion, and others have written about it extensively as well. I think there's a lot wrong with the University's position, but I had a slightly different take on it.

[1.] Let's begin with a mostly non-free-speech issue, distribution of condoms (though it's coupled with advertising of condoms, which does raise free speech questions):

During all times that university employees are performing their jobs, the law prohibits them from taking any action, and from using or providing institution funds or facilities, for any of the following: …

• Advertising or promoting services for abortion or for the prevention of conception….

Specific activities that may continue

University employees may, with certain limitations: …

• Provide condoms for the purpose of helping prevent the spread of STDs and not for purposes of birth control.

The university can provide condoms for the purpose of helping prevent the spread of STDs but not for purposes of birth control.

Now, there is an early 1970s Idaho statute (Idaho Code § 18-603) that does forbid anyone, except a doctor or someone acting for a doctor, from distributing—or advertising—contraceptives for birth control purposes:

• Every person, except licensed physicians of this state and … [certain] health care providers … acting under their direct supervision or medical order,
• who wilfully publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or
• who offers his services by any notice, advertisement, or otherwise to assist in the accomplishment of any such purpose,
• is guilty of a felony.

And the University letter expressly relies on this statute.

But in 1977 the Supreme Court struck down a functionally identical New York statute, in Carey v. Population Services Int'l. A similar limitation on distribution of nonprescription contraceptives was struck down on right-to-privacy grounds, and a similar limitation on advertising of contraceptives was struck down on free speech grounds.

Dobbs overruled the abortion rights cases, but it didn't overrule the contraceptive rights cases; and though Justice Thomas's concurrence in Dobbs suggested that all the right-to-privacy cases should be reconsidered, the majority opinion emphatically declined to do so. Carey remains binding precedent, and it renders § 18-603 unenforceable as to contraceptives. So Idaho university employees, Idaho supermarket employees, and anyone else in Idaho remains free to distribute condoms "for the prevention of conception" as much as for preventing disease.

[2.] And now a related free-speech matter:

Specific activities that may continue

University employees may, with certain limitations: …

• Have classroom discussions on topics related to abortion or contraception limited to discussions and topics relevant to the class subject and instructor neutrality….

Again, the strong implication is that classroom discussion on topics related to contraception may be forbidden, if it's not relevant to the class subject or the instructor isn't neutral. A professor who says to students, "I just hope all of you use contraceptives until you actually want to have children," would thus, the letter suggests, be breaking the law.

But I think that misreads the statutes that the letter refers to. Section 18-603, quoted above, doesn't apply to mere "discussions"; it only applies to providing contraceptives or publishing notices or advertisements for contraceptives. And the "No Public Funds for Abortion Act," which might be read as applying to discussions (though I'll argue that it shouldn't be), says nothing about contraceptives; it's limited to abortion.

Some forms of contraceptives may be viewed as abortifacients, and the statute does mention such "emergency contraception," but of course the great bulk of classroom discussions on topics related to contraception will have nothing to do with such drugs, but will have to do with contraceptives generally, or condoms, diaphragms, and the like in particular. And those contraceptives don't cause abortions—they prevent abortions.

Perhaps I'm missing something here, but it seems to me that the University of Idaho letter just errs in mixing up contraception and abortion here (just like I think it errs in neglecting to mention, as to point 1, that there's a squarely on-point Supreme Court precedent that makes clear that § 18-603 is unconstitutional as to contraception).

[3.] Now of course most of you are now thinking, contraception, shmontraception—get to the discussion of abortion already! But that is a story for the next post, which I promise is coming soon. UPDATE: And here it is.