Idaho Professors Sue Over Law Threatening Prison for Teaching About Abortion

The No Public Funds for Abortion Act is chilling their free speech rights, they argue in the suit filed by the ACLU.

Idaho Professors Sue Over Law Threatening Prison for Teaching About Abortion
Photo:Cultura RM Exclusive/Peter Muller (Getty Images)

On Tuesday, six Idaho university professors and two teachers’ unions that work across the University of Idaho, Boise State University, and Idaho State University filed a lawsuit against the state to challenge the No Public Funds for Abortion Act (NPFAA), which makes it a crime punishable with up to 14 years in prison to use public funds to “promote” or “counsel in favor of” abortion. In practice, that means that the NPFAA prohibits teaching, discussion, and even research and scholarship about abortion at publicly funded institutions, including public universities.

This has altered professors’ lessons plans, including one professor who has “removed an entire module from her bioethics course that covered abortion,” said Scarlet Kim, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project and the lead attorney on the case. Kim has also heard from professors who are “declining to pursue research into abortion or abortion-related topics,” including maternal mortality. (In June, Idaho ended its maternal mortality review committee, months after a rural hospital shuttered its entire labor and delivery department as a consequence of state abortion laws.) While NPFAA first took effect in 2021, like other anti-abortion laws in the state, Kim told Jezebel that it’s had an especially chilling impact post-Roe.

According to the plaintiffs, the NPFAA violates both the First and 14th Amendments. It violates the First Amendment rights of faculty, the suit argues, because it broadly criminalizes any academic speech that may be interpreted as favorable to abortion. And it violates the 14th Amendment as it’s unconstitutionally vague and fails to define the terms “promote” or “counsel in favor of.”

In September, a letter from the University of Idaho to its faculty warned that teaching about abortion in class or even providing condoms “for purposes of birth control” (and not merely “for the purpose of helping prevent the spread of STDs”) could result in criminal charges. The letter, shared with Jezebel, stated that adherence to these new rules is necessary because it’s not clear what will or won’t land someone in prison in post-Roe Idaho. The state maintains several extreme anti-abortion laws, including the NPFAA and another law that makes it a felony to advertise contraception and abortion. In the September letter, the University of Idaho emphasized that its zealous new rules stemmed from uncertainty: “Since violation is considered a felony, we are advising a conservative approach here,” it states at one point, continuing: “Academic freedom is not a defense to violation of law, and faculty…must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution.”

With the NPFAA, “the lack of clarity…exacerbates the chilling effect of the law, because when folks are unclear as to what’s prohibited, they’re going to steer clear of anything, especially when really harsh criminal penalties are at stake,” Kim said. “It naturally makes professors all the more fearful of what they can or can’t say in the classroom.”

The suit filed this week is specific to NPFAA, but Kim notes that, with the other laws, including the state’s aforementioned criminalization of merely advertising birth control for pregnancy prevention, Idaho has a statewide problem with policing speech where reproductive rights are concerned. Earlier this year, the state became the first in the nation to criminalize so-called “abortion trafficking”—that is, helping minors travel to access abortion care and providing them with information about abortion. And between blocking minors’ access to information about reproductive care and public universities barring classroom discussion of abortion, young people, in particular, are facing the brunt of the consequences.

Due to NPFAA, Kim expressed concern that students “won’t receive a vital political education about the issue of our time.” Similarly, in a press release shared with Jezebel, Martin Orr, president of the Idaho Federation of Teachers said the law “makes reasoned discussion impossible” in classrooms. Orr continued, “How can we teach about U.S. society without addressing abortion—one of the defining cultural and political issues of the day?”

Representatives for the University of Idaho, Idaho State University, and Boise State University didn’t immediately respond to Jezebel’s request for comment about the NPFAA’s impacts on their campuses.

In addition to the horrific ripple effects the fall of Roe has inflicted on the healthcare system, it’s also been catastrophic for free speech. In South Carolina, some lawmakers want to criminalize sharing information about self-managed abortion. Earlier this month, the ACLU and ACLU of Alabama filed a suit to prevent that state from prosecuting providers who help refer patients to out-of-state abortion care. Texas lawmakers introduced a bill to require internet providers to block websites that provide information on abortion. Surveillance, censorship, and criminalization—in our hospitals, homes, and certainly, our campuses—go hand-in-hand with the erosion of reproductive rights.

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