Idaho State Law Does Not Prohibit Academic Discussion of Abortion: Attorney General

• Idaho's "No Public Funds for Abortion Act" prohibits public funds from being used to "promote" abortion.
• Public universities interpreted the law to include academic faculty and advised lecturers to keep abortion topics neutral in the classroom or face consequences.
• Raúl Labrador, Idaho's attorney general, says that state law does not restrict academic speech on abortion.

Academic speech on abortion is not prohibited by Idaho anti-abortion law, according to Idaho Attorney General Raúl Labrador.

In a letter to state Rep. Judy Boyle regarding the application of Idaho's "No Public Funds for Abortion Act" to higher education, Labrador said that the legislation does not ban university employees from "speaking of abortion in their academic teachings."

The letter goes further to say that speech may not be restricted even when it could be "viewed as supporting abortion, or abortion rights in general."

Labrador includes examples such as professors assigning reading that discusses or advocates for abortion, assigning research topics on abortion, teaching about court cases related to abortion, and discussing different ways states regulate abortion, including Idaho's laws, which would not be in violation of state law.

However, speech by public university employees that does not fall under the category of academic teaching or scholarship would remain prohibited by state law. The new guidance also does not apply to non-university employees, including high school teachers.

First Amendment Reality Check

After the U.S. Supreme Court struck down Roe v. Wade, a 1972 Idaho law went into effect that makes it a felony for unlicensed physicians and healthcare providers to advertise medicine that facilitates abortion or prevention of conception.

That law combined with Idaho's 2020 trigger ban on abortion, which was allowed to go into effect Aug. 25, 2022, and its 2021 No Public Funds for Abortion Act convinced the university's legal team to take a conservative approach to compliance, according to reporting by The Argonaut, an independent student newspaper.

A memo written by the University of Idaho's general counsel interpreted state laws as prohibiting the use of public funds and facilities to promote abortion, provide an abortion, counsel in favor of abortion, or contract with abortion providers.

Faculty would be allowed to include topics related to abortion in their classrooms, as long as the instructor remained neutral about the topic in the discussion, according to the memo obtained by Boise State Public Radio on Sept. 26, 2022.

If university employees violated the new laws, including making non-neutral statements in the classroom, they could face felony conviction, termination, or a permanent ban on future state employment, the general counsel warned.

First Amendment advocates spoke out against the guidance at the time, saying that the "No Public Funds for Abortion Act" could not be constitutionally applied to academic speech by faculty members.

"Faculty members don't shed their First Amendment rights at the classroom door," Adam Steinbaugh, an attorney for the Foundation for Individual Rights and Expression said in a press release. "It isn't just misguided to keep faculty from speaking freely — it's illegal."