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

Idaho's Attorney General Raúl Labrador so opines, including a rousing defense of academic freedom, including in scholarship and teaching.

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.)

Comments

[John F. Carr]

The last sentence of the opinion notes that it is only binding in criminal prosecutions brought by the Attorney General's office. County prosecutors have free will.

[Bob from Ohio]

"Labrador opposes late termination of pregnancy and believes "life begins at conception" and that "The unborn child is still a child – made in the image of God, who will one day have the same hopes and dreams as the rest of us. The fact that life begins at conception might be an uncomfortable truth for some. But it's a truth, all the same."[44]" wikipedia

GOP politicians are such weaklings, content to utter words but seldom act.

[Social Justice is neither]

The media might do a hit piece on them I'd they don't act but will do a dishonest hit piece or 10 million on them if they do act.

[Sarcastr0]

I’d say your policies are too extreme to be electorally viable. But you’ve never been one for substantive decisions other than lots of punishment.

[SimonP]

Bob is probably also in the camp that believes that their policy preferences shouldn't be required to attract broad electoral support, and may simply be imposed at will.

[SimonP]

Yes, so weak, respecting the contours of the Constitution...

[Rev. Arthur L. Kirkland]

STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 52 jurisdictions ranked)

COLLEGE DEGREE
Idaho 38

ADVANCED DEGREE
Idaho 41

STRONGEST PUBLIC SCHOOLS
Idaho 38

FIRST-TIER UNIVERSITIES
Idaho last (tied)

REPUBLICAN REGISTRATION
Idaho 6 (tied)

HALF-EDUCATED HAYSEEDS
Idaho 9 (tied)

FIRST-TIER EDUCATIONAL INSTITUTIONS
Idaho last (tied)

Carry on, half-educated conservative clingers.

[Idihax]

College doesn't make people smarter. It teaches them that it's acceptable to peg other men and "marry" them.

[Rev. Arthur L. Kirkland]

You are the Volokh Conspiracy's target audience . . . and another reason the Volokh Conspirators' days on legitimate campuses are numbered.

[Religion and Politics, my life]

Anyway with Google can debunk this statistically invalid statement

[The Margrave of Azilia]

Meaningless statistics – more relevant would be the number of STEM (plus law and medicine) graduates from the universities. Some non-STEM subjects could be mastered by intelligent, reasoning adults in a course of study available at much less than college costs. As to certain other non-STEM subjects…well, by all means tell us how a “studies” graduate with a PHD and lots of debt is a superior person vis-a-vis a trained mechanic or plumber.

The bottom line, though, is that Kirkland has dropped the mask of saying that rural whites simply are voting against their best interests by not voting progressive. Now the definition of progress is denouncing people as “human residue,” forcing things down throats, and stomping on opposition. My idea of progress has a lot to do with lifting everyone up, not just self-designated groups of the enlightened, who are whipped in to a frenzy against the Other as defined by the Kirklands.

Kirkland doesn’t reflect on the merging of big corporations with the progressive movement, so it becomes increasingly difficult to tell where one ends and the other begins. "Woke" Amazon has problems treating its workers (of any race) properly, but the important thing is they say the right things and (most important of all) pay off the right agitators. That would be the intelligent, scientific thing to do.

[DavidTaylor]

"“Woke” Amazon has problems treating its workers (of any race) properly, but the important thing is they say the right things and (most important of all) pay off the right agitators. "

Amazon is widely reviled by progressives, so I am not sure that I understand what you are driving at with this statement.

[The Margrave of Azilia]

Well, if they see the insincerity of Amazon's woke pretensions, good for them. Maybe some progressives still remember that they're supposed to be about economic justice, not stomping their culture-war opponents and forcing things down their throats.

[DavidTaylor]

"Maybe some progressives still remember that they’re supposed to be about economic justice..."

I would not presume to decree what progressives are supposed to be about, but I'll take your word for it.

"....not stomping their culture-war opponents and forcing things down their throats."

Well, the bad habit of forcing things down throats is a feature of every political position, so I am hesitant to condemn progressives as markedly guilty of doing so.

[The Margrave of Azilia]

You made generalizations about progressives - that Amazon is widely reviled by them - but you don't want me making generalizations?

[Dr. Ed 2]

This is how you encourage your state legislature to cut your budget.

It's not a first amendment violation to eliminate an entire department.....

[hobie]

Think how less employed you'd be had Liberty eliminated creation science, Dr. Ed

[SimonP]

So let's pump some intuitions.

Suppose that New York passed a law prohibiting the use of public funds to "promote gun ownership." Under this AG's reasoning, public university professors would still be permitted to write and speak academically and in the abstract in favor of gun ownership, but they would not be permitted to counsel specific students looking for advice on where they could acquire a personal firearm, or on whether they ought to acquire one to protect themselves, etc.

Suppose that California were to pass a law prohibiting the use of public funds to "promote any specific religion." Under this AG's reasoning, public university professors would still be permitted to write and speak academically and in the abstract in favor of Christianity, and could "promote" religiosity in general with students during office hours, but could not do specific things like advise students to convert or invite them to attend their church.

Does the distinction still seem like a tenable one?

[taqmcg]

Not a lawyer, but isn’t the second hypothetical already the law under the first amendment? I.e., the teachers at a state school may not, as part of their work duties, actively proselytize — though I’d presume they can outside of work. However a professor could certainly conduct research that happens to show that converting to a particular religion is correlated with some desirable outcome, which research could certainly be construed as encouraging such a conversion. There might be an issue if the professor performed misconduct to skew the result but then the misconduct is the issue not the topic. And simply writing, not representing the university, but still as part of one’s academic duties, on religion is clearly allowed and the expression of an opinion in such is surely permitted. E.g., condemning human sacrifice (or the Inquisition), or praising the Judaism’s or Christianity’s role advancing elements of public morality are not impermissible statements on religion by an academic — despite condemning or affirming a particular religion, nor are far more controversial statements in this context.

I’m less clear about first one mostly because I’m trying to understand what activities might be intended to be banned. But generally, just as the Hyde amendment’s ban on funding of abortion seems constitutional, so too might a ban on state-employee activities promoting the purchase of guns. I’m guessing that there probably aren’t too many shooting clubs left in New York public schools anyway, but I don’t think there’s a constitutional right to have the sport supported or to foreclose having it forbidden. But it would be unconstitutional and a violation of academic freedom to forbid research into positive consequences of gun possession by a professor, so say John Lott’s research (I believe he was at one of the SUNY’s for a while) could not be forbidden.

So for me I guess these suggest that the distinction can work — whether such restrictions are desirable is a separate question.

[SimonP]

Not a lawyer, but isn’t the second hypothetical already the law under the first amendment?

I don't think so.

The rest of your comment misses my point. The question is not whether the First Amendment protects public university professors when they engage in general academic work on matters where the state would prefer to withdraw public support. The question is whether the distinction drawn between that kind of work and some narrower category of speech deemed "promotion" is really tenable.

I would posit that Eugene, the Idaho AG, and others of their ilk may find it completely sensible to proscribe "promotion" of abortion, as defined for purposes of this opinion, but would be more allergic to such a proscription if it were applied to other legal or constitutionally-protected activities.

[The Margrave of Azilia]

The chances are this opinion avoids a lawsuit which the state might lose.

So be it, then - let professors propagandize for abortion in state university classrooms.

And let them use the pronouns of their choice, and say "Bruce Jenner is a man."

Let them say, "abortion stops a beating heart."

Of course, the minority of profs inclined to say such things risk administrative retaliation and student mobs. But sure, free speech and academic freedom all the way!

[NOVA Lawyer]

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

Untrue headline. As the AG notes, even under his interpretation, it does preclude certain pro-abortion speech:

"Thus, a professor might violate the Act by advising a specific student during office hours to obtain an abortion..."

"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"

Even under the AG's interpretation, the Act very much does preclude some pro-abortion speech by professors. Accurate and concise headlines are difficult, I suppose, but this is obfuscates that true effect of the law. Maybe: Idaho AG narrowly interprets Idaho Act which limits pro-abortion speech by professors.

And, given the recent discussion of who is in favor of free speech and who isn't, including the specific example of a poll suggesting lots of students were against having an anti-abortion speaker on campus, here we have a state law actually implementing (partially) that result from the opposite side.

[The Margrave of Azilia]

Usually, the First Amendment doesn’t protect on-the-job speech: the public employee must say, or refrain from saying, what the employer wants.

Academic freedom, according to several courts, is an exception to this principle. Under this view, the stuff professors say in class, on the clock, is protected. The Idaho AG adopted this line of thinking.

But if professors shift into advising students on non-academic subjects, they’re in the same legal regime as any other public employee and must adjust their speech to what the taxpayers’ representatives want.

In other words, there may be a classroom exception to the rules other public employees have to follow, and there’s probably an academic-advising exception too. It simply doesn’t go to the extent of advising students on non-academic subjects.

Such advice would be no more protected than James the Janitor, while on the clock, telling a young woman he knows a guy who can make her problem go away.