The University of Idaho General Counsel's Letter on Abortion

Justice Scalia, to the rescue.

As I noted in my post on the related contraceptives question, 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. Here are some key passages:

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:

• Promoting abortion; …

Some … activities are permitted, with certain limitations, such as: …

• Having classroom discussions on topics related to abortion when limited to discussions and topics relevant to the class subject and instructor neutrality in the discussion….

Classroom Discussions. Classroom discussion of the topic should be approached carefully. While academic freedom supports classroom discussions of topics related to abortion, these should be limited to discussions and topics relevant to the class subject. The laws discussed above, specifically including those addressing promoting abortion, counseling in favor of abortion and referring for abortion, will remain applicable. 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.

As authority for this, the letter cites the Idaho "No Public Funds for Abortion Act," which was just enacted last year; and that does say that publicly provided funds

shall [not] 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.

The letter thus appears to be reading "promote" to mean "support" or "encourage," which is indeed what the word "promote" often means in ordinary English.

But in this sort of context, it seems to me, "promote" does not refer to abstract advocacy, such as the statement "I believe that abortion should be legal" or even "I encourage you to obtain an abortion." It refers to the recommendation to a particular person to get an abortion. Though, when taken in isolation, the verb "promote" is susceptible of multiple and wide-ranging meanings, in context these meanings are narrowed by the well-established legal canon of noscitur a sociis ("it is recognized by its associates"), which counsels that a word is given more precise content by the neighboring words with which it is associated. And those neighboring words are all reasonably read to have a transactional connotation, focused on recommendations that particular people undertake procedures (perhaps in particular clinics), not abstract advocacy.

Don't take it from me, though, take it from Justice Scalia, from whom I cribbed liberally in the preceding paragraph.

That's because virtually the same question arose in U.S. v. Williams (2008), a 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" must be read not 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. See American Heritage Dictionary 1403 (4th ed.2000) (def. 4: "To attempt to sell or popularize by advertising or publicity"). Similarly, "presents," in the context of the other verbs with which it is associated, means showing or offering the child pornography to another person with a view to his acquisition….

To be sure, there remains an important distinction between a proposal to engage in illegal activity [which is generally constitutionally unprotected, the Court held -EV] and the abstract advocacy of illegality [which is generally constitutionally protected, the Court had earlier held -EV]. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it….

[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.

This reasoning applies squarely to the Idaho abortion statute, it seems to me. And if "promote" in the Idaho statute is indeed interpreted the way the same word was in the statute in Williams, then classroom discussions—whether or not germane to the subject, and whether or not presented neutrally—just wouldn't be covered by the statute.

To be sure, the statute would indeed bar more specific, individualized urging of particular abortions, e.g., a university employee on the job urging a particular student (or colleague) to get an abortion (which might be "counsel[ing]," "refer[ring]," "promot[ing]," or more than one of those). Rightly or wrongly, that would probably also be constitutionally unprotected, at least if it's urging an abortion in Idaho, since that would be solicitation of a crime. (Whether counseling someone to get an out-of-state abortion, an abortion that would thus not be illegal under Idaho law, can be made illegal when done with government funds is a different matter; I'm inclined to say that it could be, at least in most situations, at least outside university teaching.) But I expect that virtually no classroom discussions of abortion actually involve a professor so counseling a particular student. Indeed, I expect that most universities would take a dim view of a professor seriously counseling a student on any medical procedure in front of a classroom full of students, at least outside some extraordinarily rare situations.

Now this having been said, I entirely appreciate the importance of caution here. The University of Idaho may well want to advise faculty members that the statute might be interpreted more broadly than I suggest, and faculty members may well be concerned that it might be interpreted broadly. And the Legislature can be faulted for that sort of "chilling effect," which is a foreseeable consequence of vague statutes.

At the same time, recall that a conservative Supreme Court in Williams interpreted a statute banning "promot[ing]" child pornography to be limited to individualized proposals of "transaction[s]" in particular items of child pornography. It thus seems pretty likely that even conservative Idaho courts would interpret a statute banning "promot[ing]" abortion to be limited to individualized proposals of "transaction[s]" to be engaged in by particular people, perhaps with particular abortion clinics.

So I do think we should be worried about the possible breadth of statutes such as the Idaho "No Public Funds for Abortion Act." It would certainly have been better if the Legislature drafted it more clearly, and it may require a preenforcement challenge to establish that it should be read narrowly, in a way that excludes abstract advocacy (including in classroom discussions). But it's important to recognize that there's solid law supporting a narrow reading, and not just that there's a risk of a broad reading.