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.

Comments

[Rev. Arthur L. Kirkland]

" 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: "

This is why modern, educated, accomplished, reasoning Americans do not live in places like Idaho.

Clingers, though, should probably flock there.

[AmosArch]

I think its reasonable to expect that taxpayers don't have to be on the hook for a pottery teacher ranting all year long in class about how bad Republicans are (especially if we are supposed to also punish coaches who pray by themselves) but I doubt this is under much threat in this instance.

This is just another case of people not having anything reasonable to argue against inventing something to do so. I hope the leftists have fun arguing for hours against the fevered imagination of another leftist.

[MollyGodiva]

Except it was a Republican who put out that clearly erroneous letter. The Republicans want to ban all birth control.

[BravoCharlieDelta]

Buy your own birth control, no reason others should be on the hook for your personal and private sexual practices.

[MoreCurious]

Buy your own anti-psychotic meds.

[AmosArch]

The University of Idaho attorney is a Republican?

[Eugene Volokh]

Hard to tell for sure, but he's a former Idaho state prosecutor who went on to work for several years as a lawyer for DHS and ICE (see here). Idaho, where even the university lawyers might be Republicans!

[Rev. Arthur L. Kirkland]

" Idaho, where even the university lawyers might be Republicans! "

That's something to cheer -- let's hear it for the can't-keep-up, education-disdaining, Republican backwaters!

[ReaderY]

Professor Volokh,

I think this analysis is flawed. We are dealing with government spending on government eemployees, not government regulation of individuals’ conduct. Government has no obligation to fund contraceptives.

The academic freedom cases likely limit government control over what university professors say. But contraceptives are a product, not speech. If Idaho doesn’t want its money spent on contraceptives, it probably has a right to limit what it spends its money on.

[Eugene Volokh]

ReaderY: You say "If Idaho doesn’t want its money spent on contraceptives" -- but Idaho never enacted a statute banning the spending of its money on contraceptives.

Instead, in the early 1970s, it enacted a statute making it a felony for contraceptives to be distributed other than by doctors, whether or not state money was spent on that. And the statute didn't forbid contraceptives being distributed by doctors, even if state money was spent on that. The statute says absolutely nothing about state money.

Then in 1977, a Supreme Court decision made the statute unenforceable. That decision remains good law.

Now, the University of Idaho General Counsel relies on this statute as a basis for saying that the University can't distribute condoms for contraceptive purposes (but can distribute them for purposes of preventing STDs). The General Counsel doesn't rely on the government money argument, either, again because the statute doesn't mention government money. And relying on a statute that has been held unconstitutional by a still-binding Supreme Court decision strikes me as unsound.

[Snorkle]

"And relying on a statute that has been held unconstitutional by a still-binding Supreme Court decision strikes me as unsound."

It seems to me we are approaching the point at which caution is at least something to think about. This SCOTUS doesn't seem particularly shy about disgarding precedent, particularly so when it turns to its apparent interest in issues surrounding the control of sex. The language used in overturning Roe read as rather foreshadowing, in fact.

A member of the court wrote on the topic recently.

[Eugene Volokh]

Well, caution is always something to think about (though note that the Dobbs majority expressly said that it wasn't open to reconsidering the contraceptive cases). But a letter that mentions a statute, without mentioning that under currently binding precedent it's unconstitutional, doesn't strike me as a sound legal analysis.

[ReaderY]

Well, one way to interpret what’s happening is that the University General Counsel is imposing a workplace rule based on a policy preference articulated by the legislature. And it seems to me such a workplace rule, while perhaps bad policy, wouldn’t be unconstitutional in most cases, as handing out contraceptives wouldn’t be a normal part of most professors’ jobs anyway. And even if unconstitutional as applied to private individuals, the policy behind the statute has constitutional applications, and what state employees can do on work time would seem to be one of them.

I agree that the state can’t restrict what they say, and its ability to restrict what they do on their own time is limited. But the letter refers only to what professors are doing during work time.

Why is the legislature the only party that can make employment rules for universities?

It may well be that the General Counsel doesn’t have the authority to formulate or impose work rules for professors based on the policy behind statutes. But why wouldn’t that be a question of University bylaws or contract law (in any event a state law matter) rather than a constitutional matter?

[Eugene Volokh]

1. I indeed don't think it's the General Counsel's office role to generally set up university rules based simply on his view of the legislature's policy preferences. There certainly are administrators who may have that obligation, but the GC isn't one of them.

2. If he was trying to set up such rules, it's hard to see why he would rely on a 50-year-old statute that hasn't been enforced in Idaho since 1977. Do we have any indication at all that today's Idaho Legislature wants condoms at U Idaho to be distributed only for prevention of disease and for prevention of conception? Do we have any indication at all that today's Idaho Legislature wants to control what professors say about contraception?

3. I certainly agree that a rule that the university could only distribute condoms for prevention of disease and not for prevention of conception wouldn't be unconstitutional. But I think it would be a pretty foolish rule, and I'd like to know what good reason the Idaho administrators (the GC or anyone else) would have to implement it.

[ReaderY]

I wouldn’t argue with the proposition that, to paraphrase Justice Thomas, it would be a rather silly rule. But I think it’s to be expected that, also with Justice Thomas in mind, Dobbs will tend to lead to various people looking for various ways to revisit various old cases in the line from Griswold to Obergefell.

It’s also perhaps to be expected that probing the boundaries would start with cases where a law, if narrowly drawn, could be constitutionally applied under current doctrine.

I would tend to agree that the general counsel here is not simply looking at the law neutrally. He may be looking for a case that the courts might be willing to uphold, with an eye to getting the policy behind the law back into play, much as was done over funding of abortion and similar peripheral skirmishes after Roe. And that’s probably because he WANTS the policy back in play, or at least someone in government he has connections to does.

He may well have no business or authority to do any such thing. But my thought here is that the question of whether he has the authority under state law to get from a stuck-down felony to a workplace rule for state universities would be the primary basis to challenge his actions in court.

If he has the authority, he’s probably right that it’s within the power of the state to do this in the form of an employee workplace rule, and hence he has probably chosen to tilt at his particular windmill wisely, at least from a strictly legal tactical point of view.

[MollyGodiva]

The left has been saying for years that Republicans want to ban birth control, and they were mocked. Can you now admit that they were right?

[Eugene Volokh]

I try only to admit to things that are true, not ones that are false. I have absolutely no reason to believe that Idaho Republicans as voters, or the Idaho Republican Party, wants to ban birth control. Indeed, at this point it appears that Republicans have been generally backing over-the-counter access to birth control pills, for instance. (To be sure, some Democrats oppose that, arguing that such over-the-counter pills wouldn't be covered by insurance plans, and would thus become more expensive; one can debate what's the best policy; but urging that birth control pills be available over the counter seems inconsistent with wanting to ban birth control.)

[MollyGodiva]

My “you” was not to you, Prof. Volokh, but to the commentators. But I do think that the Republican party is most definitely moving in that direction.

https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/05/19/some-states-already-are-targeting-birth-control

https://www.plannedparenthoodaction.org/planned-parenthood-alliance-advocates/press-releases/icymi-indiana-lawmakers-restrict-youth-access-to-birth-control-as-they-ban-abortion

There are other examples.

[SimonP]

Christ, Eugene. That link is to an article that is more than seven years old. Try not to be such a hack.

[Bill Falcon]

College students are too stupid to buy condoms? Man the kids are not alright anymore. My wife's friend (white suburban corporate type) actually bought condoms for her son when he went off to college...I wonder if she provided a "ho" for him as well...Karen's are a threat to the country

[Eugene Volokh]

Bill Falcon: Under the Idaho statute, college students, like others, aren't allowed under Idaho law to buy condoms except from a doctor or someone directed by a doctor. Indeed, under that law, it's a felony for anyone other than a doctor or someone directed by a doctor to sell condoms. That law is invalid, because of Supreme Court precedents. But rather than noting that the law is invalid, the General Counsel's office is insisting that the University of Idaho can't provide condoms (whether for free or for money).

[Michael D]

Someone else wrote in the comments when this letter was discussed yesterday or the day before. I think I can sum up the gist of the comment in one word: muckraking.

Too much BS here that your lawyer types will quibble over for days when the whole thing is loaded political bovine scat, not based on anything other than a manipulation and cherry picking of certain laws and court decisions.

This comes down to “let’s get as many people stirred up and angry as we can”.

Here is my suggestion: #abolishgovernmentschools, that especially includes post-secondary education. #defundcollege. Wanna see some heads start fo explode? Watch college staff and administrators go ballistic over that idea.

[Dan Schiavetta]

In the 1970s I was on the staff of the campus birth control clinic (at my state university). A prerequisite was a class taught by faculty. The clinics were on Fridays in the Student Health Center and we rotated various duties as women got screened and examined by the school nurse either for their sexual health (vaginitis, endometriosis) or for contraceptives (fitted for diaphragms, prescribed for pills). Our student activities group was called Contraceptives and Sexual Awareness, or CASA ("be at home with your bodies"). In doing the pre-appointment education sessions with the women and (on lucky occasions) their boyfriends, I was shocked at how uninformed some of the people my age were. Knowledge of contraceptives went hand in hand with knowledge of sex and of your body.

If you had told me in 1979 that in 2022 this kind of thing would be prohibited, I probably would have thought a nuclear holocaust had occurred and humankind had been reduced to a medieval remnant. I would have thought of Poe's phrase, "Darkness held illimitable dominion over all."

[John F. Carr]

In the 1980s I was involved in a discussion of where to put my dorm's new condom vending machine. I didn't really care. The dispute was over convenience vs. privacy.

Twenty years later a graduate resident in another undergrad dorm had a big bag of condoms he handed out to anybody who wanted one. Age of consent is 16 in Massachusetts so no real risk of aiding and abetting statutory rape. I wonder if handing a condom to a freshman where the age of consent is 18 is legally risky.

[Brett Bellmore]

I notice that the letter is unsigned, and the General Counsel office of the U of ID has a significant staff. And the contact emails given are the general office emails, not specific to any member of the office staff. So we really don't know who originated this letter, do we? Just that it came from the General Counsel's office.

But it does seem strange to have cited as authoritative a law they had to know was invalid. I wouldn't rule out that it was just an effort by somebody to whip up some hysteria for political ends.

[John F. Carr]

I was going to say the invalidity of the law appears clearly established for qualified immunity purposes, but anybody enforcing the law in a state school would have 11th Amendment immunity.

[John F. Carr]

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

It was once easier (I heard), or less embarrassing, for girls to ask for pills to manage their painful periods than to provide contraception. But the resulting prescription was identical.

[QuantumBoxCat]

Next do a breakdown of New York's whipped cream canister law.

Lol.