Since we started asking our fellows to write newsletter issues in 2021, our first cohort from 2020 missed out on the opportunity! This year, we asked folks if they wanted to come back for an alumni victory lap, and some of them kindly agreed!
Please welcome Korica Simon, an IfRFA fellow from 2020 with her newsletter issue. Thank you so much Korica! Please watch out for future issues with more contributions from our alumni! If you missed the summer series of newsletters from our 2022 fellows, it can be found
here.
Back in September, the general counsel for the University of Idaho sent an
email to university employees advising them on how they should act in light of Idaho’s abortion laws. The email stated that Idaho abortion laws prohibit university employees from: counseling in favor of abortion, referring someone for an abortion, advertising or promoting abortion services, and more. The general counsel warned employees that if they violated these statutes, they could face criminal charges or loss of employment.
The email stated employees could have classroom discussions on abortion-related topics as long as those discussions are limited to topics relevant to the class subject and the instructor remains neutral in the discussion. The general counsel acknowledged the vagueness of the laws and the uncertainty around how the laws will be enforced. But despite that, employees were on their own to figure out exactly how to stick to their principles and to obey the law. Unfortunately, these issues may be something that university employees and the public will have to grapple with for some time as new laws are created criminalizing the disclosure of abortion information.
Idaho isn’t alone. Pre-
Dobbs and after, several states have passed anti-abortion laws that are designed to have harmful effects on people’s First Amendment rights to speak on abortion. In Idaho, their anti-abortion statute prohibits employees of public institutions from “
counseling in favor of abortion” or
promoting abortion. In May 2021, the governor of North Dakota signed a bill that requires institutions to show that they are not partnering or sponsoring any person or organization that promotes “
the performance of, an abortion unless the abortion is necessary to prevent the death of the woman” in order to be eligible for state grants. In August 2021, a Texas bill, SB 8, was passed that allows anyone to bring a civil lawsuit against someone who “
aids or abets the performance or inducement in an abortion.”
Current case law seems to indicate that these kinds of statutes are unconstitutional. In 1974, the Supreme Court ruled on the case
Bigelow v. Virginia. Jeffrey Bigelow was the managing editor of a Virginia-based newspaper. On February 8, 1971, he published an advertisement in the newspaper on behalf of an organization providing abortion services in New York. While abortion was legal in New York at the time, it was illegal in Virginia. A Virginia state law made it a misdemeanor to encourage abortions through lectures, publications, advertisement, or any other manner. After the advertisement was published, Bigelow was charged under this statute and subsequently convicted.
In reviewing his appeal, the Supreme Court found that Virginia could not shield its citizens from obtaining information about abortion from outside of Virginia’s borders. The advertisement provided information to readers who not only needed the services but also may have been interested in the subject matter or seeking reform in Virginia. When Bigelow allowed the advertisement to be put into the newspaper, he was exercising his First Amendment right to share information about abortion to the general public and the Supreme Court protected that right by finding the Virginia statute unconstitutional and overturning his conviction.
This case seems to indicate that states can not restrict people from sharing abortion-related information with the general public. So why is the University of Idaho guiding employees to remain neutral on abortion during classroom discussions and why are states passing laws restricting abortion talk?
Whether the statutes end up being constitutional or not, lawmakers are trying to create a future in which no one says the word “abortion.” The goal is to instill fear, so people become afraid to speak about abortion access due to the possibility of being penalized criminally or civilly. Not only is this harmful to society at large, but it also creates a dangerous atmosphere for pregnant people who will need support and resources from others as they seek critical healthcare information. Legislators understand that people are stronger when they plan together, so it’s no surprise that these laws are being created to hinder organizing within communities and chill their free speech.
These laws are also intentionally vague. Idaho’s statute fails to define what activity falls within “counseling” or “promoting” abortion. Likewise, SB 8 failed to define what aiding and abetting mean outside of monetary support. The objective seems to be to capture as much activity as possible and to leave people in total confusion as to what language is acceptable, so that they self-police and decide not to say anything at all about abortion.
As professors, organizers, activists, and people, we must ask ourselves what our moral responsibility is as these laws become more common? Should we share information with a friend, a colleague, a student who needs it? Should we self-police and restrict all speech in order to avoid prosecution? I know what MLK Jr. would
say.