Disclaimer: This blog contains my own independent legal analysis and opinion, and it is not intended as legal advice, nor does it create any attorney/client relationship. My professional door is open to represent people who need help navigating the complex “bowl of spaghetti” laws surrounding reproductive choice in Idaho, for providers or for anyone else who needs legal help. If you would like legal advice or consultation, my office at Merrill and Merrill is the proper place to contact me for that.

If you would like to speak with me as a candidate on this or any other important issue for this campaign, please reach out to me through the contact info on this website.

As you have probably read about or heard about, the University of Idaho General Counsel’s office issued a memo to staff that censored speech on campus about abortion and contraception. The memo stated that they would not provide birth control on campus except for condoms to prevent STI, but they would refer students off campus. The campus health center is still allowed to give medical advice and consult. In the classroom, faculty are allowed to discuss abortion only as it relates to the topic they are teaching, and they must remain neutral on the subject. They are not otherwise allowed to discuss abortion or contraception with students. Faculty were warned that violations can lead to immediate job termination, a potential felony charge, and a lifetime ban from public service.

The following week, University of Idaho administrators issued a clarification by email, stating that this memo from General Counsel’s office did not change any academic freedom policies on campus. This email also clarified that birth control would remain available on campus. The email was otherwise silent on whether the rest of the memo was enforceable as policy on campus.

There are discussions on going, and I recognize as a former instructor at a public university (Idaho State University) as well as an attorney who has advised public universities, that General Counsel advice does not take the place of University policy. Right now I think everyone is very confused about what they can and cannot say on public universities as a result of a poorly written statute and some confusing messaging on college campuses. The end result is that speech is chilled on public campuses about a topic that many students would like to be talking about right now, right before an important midterm election.

Fortunately for students, there is a Planned Parenthood close by in Pullman, Washington, where reproductive rights remain fully intact.

Boise State University put out a similar memo, but they restricted their concerns to promotion of abortion, and not contraception.

As of today, Idaho State University has not issued a memo, but they have counseled their faculty similarly through General Counsel’s Office. Professors in the Political Science Department decided against holding a planned question/answer event about the Dobbs decision and reproductive rights, sponsored jointly by the Law Club and the Political Science Club. The event was set to happen on September 27, 2022, the day after the news broke about the University of Idaho memo and controversy. In the wake of the national news event, the professors decided to turn the event into a simple meet and greet. James Ruchti and I had planned to attend the question and answer session, but instead we met with students and faculty. We were told that the ISU General Counsel was staying “neutral,” but they did caution the faculty that Idaho law was muddy.

News reports have stated that the College of Idaho does not believe they have any legal restrictions against providing contraceptive care or information on campus.

As a threshold matter, I agree with President Biden’s Press Secretary that “nothing under Idaho law justifies the University’s decision to deny students access to contraception.” https://idahocapitalsun.com/2022/09/27/white-house-calls-idaho-abortion-laws-extreme-and-backwards-in-response-to-university-memo/

The general consensus I am hearing among lawyers is that the University of Idaho has overreacted, and their policy on this is problematic, especially concerning contraception. I will explain my take on the law. I am extremely concerned that there may be concerted pressure campaign happening on college campuses in Idaho right now. The timing is incredibly suspect – six weeks before a statewide midterm election, where abortion is definitely on the minds of many, and with reports that college students are registering to vote at significantly higher rates that usual midterm election years. The intent and the effect seems to be to chill speech on Idaho college campuses about reproductive rights. I believe and other lawyers believe this is a very blatant First Amendment violation, and Idaho is now opening the door to more expensive lawsuits they will not be able to defend.

The University of Idaho memo seems to result from their interpretation of two Idaho statutes; Idaho Code § 18-603 (part of the Idaho abortion criminal code Chapter); and Idaho Code § 18-8702, a new statute enacted in 2021, the same legislative session as the second trigger ban. Idaho Code § 18-8701 (now amended), the Fetal Heartbeat Preborn Child Protection Act. The University’s reliance on these two statutes is problematic and it is disconcerting that the academic institutions of this State did not even seem to consider the First Amendment before censoring this topic on campus. The statutes they are concerned about are unconstitutional under the First Amendment of the United States Constitution, and the Idaho equivalent, at least with regard to contraception and legal abortion. Let me explain.

In 1965, the United States Supreme Court ruled that banning contraceptive use violates a fundamental right to privacy of intimate relationships and the decision whether and when to bear children, within marriages. Griswold v. Connecticut, 381 U.S. 479 (1965). In 1972, the United States Supreme Court extended that right to unmarried persons. Eisenstadt v. Baird, 405 U.S. 438 (1972). This decision was extended not solely on privacy grounds, but rather on equal protection grounds: the Court held that treating married couples different than nonmarried couples in this respect violated the Equal Protection Clause of the Fourteenth Amendment.

Idaho Code § 18-603 bans anyone who is not a licensed physician (or someone licensed and acting under their direction, like a nurse or a PA), from advertising or publicizing access to abortion or contraception services. The crime is a felony. The statute was recodified in 1972, the year of both Roe v. Wade and the Eisenstadt v. Baird case, but it derives from an old statute from the territory days enacted originally in 1887. It is critical to remember that this was the era of American history where medical doctors were trying to push midwives out of obstetric medicine so they could take over the lucrative business. (See Amicus Brief filed by the American Historical Association and the Organization of American Historians filed in the Dobbs case). https://www.historians.org/news-and-advocacy/aha-advocacy/aha-amicus-curiae-brief-in-dobbs-v-jackson-womens-health-organization-(september-2021)

It is also important to remember that this old statute was first passed in the context of the 1873 Comstock Act. This law declared birth control immoral and obscene. Margaret Sanger was arrested in 1929 after giving a speech in violation of that law. https://archivesfoundation.org/amendingamerica/indictment-margaret-sanger-1914/#:~:text=The%201873%20Comstock%20Act%20defined,Government%20to%20drop%20the%20charges

In 1977, the United States Supreme Court held that advertisement of contraceptive services is protected as commercial speech under the First Amendment. Carey v. Population Services International, 431 U.S. 678 (1977). This decision was followed and extended to direct mail advertising in Bolger v. Young’s Drug Products Corp., 463 U.S. 60 (1983). Advertising for abortion services is also protected by the First Amendment. Bigelow v. Virginia, 421 U.S. 809 (1975). The statute at issue in that case tried to criminalize advertisements circulated in Virginia about abortion services offered in New York.

Since the 1970’s, the United States Supreme Court has held in case after case that commercial advertising for services that the law permits is protected by the First Amendment. The State must show an important government interest to burden that First Amendment right.

It is critical for me to keep reminding everyone: contraception remains 100% legal in Idaho under the trigger bans. Today, in Idaho, contraception is not considered abortion. Not Plan B, not the IUD. Idaho Code § 18-604(1); Idaho Code § 18-8801 (I will explain more below)…

You can see where I’m going here…

The second law the Universities seem to be concerned about relates to public funding for abortion care, Idaho Code § 18-8705. This is the law that was passed in 2021 with the Fetal Heartbeat Unborn Child Protection Act. It was completely unnecessary, because no public funding in Idaho has ever gone directly to abortion care. The real purpose of the statute was to defund organizations like Planned Parenthood, because if makes it a crime for any public funds or any public officer, employee, or agency to promote, procure, provide, induce, refer, counsel, or provide facilities or services for abortion care if they are not a medical provider. Federal law already forbids federal tax dollars from being used to fund abortion care, with limited exceptions..https://www.plannedparenthoodaction.org/blog/the-hyde-amendment-restricting-abortion-coverage-for-40-years Idaho was sued in 1993 by the ACLU in Roe v. Harris, forcing Idaho to provide medically necessary abortion care as part of the obstetric services covered by Medicaid. https://www.aclu.org/other/access-denied-origins-hyde-amendment-and-other-restrictions-public-funding-abortion. But generally, elective abortions have not been paid for by Idaho or federal tax money in any direct way for many decades. The 2021 statute was intended to punish organizations like Planned Parenthood by making sure they could not get any state funds to provide other kinds of reproductive health care for patients, because they promote and provide abortion care for their patients who want that service.

This law has been twisted in Idaho. First, some in the press originally stated their belief that this statute bans Plan B from being provided on public university campuses. https://www.idahoednews.org/news/idaho-colleges-dont-have-much-freedom-to-move-in-a-post-roe-climate/#:~:text=09%2F26%2F2022-,Idaho%20colleges%20don’t%20have%20much%20freedom%20to,in%20a%20post%2DRoe%20climate&text=Colleges%20and%20universities%20across%20the,decision%20to%20overturn%20Roe%20v

It does not. This code section specifically defines abortion to include medication to end a “clinically diagnosable pregnancy.” Idaho Code § 18-8702. Early pregnancy is diagnosed clinically through measuring the hCg hormone, which is not produced until after the fertilized egg is implanted. Plan B works to prevent implantation, and it is only effective if taken within three days of fertilization. This time frame is too soon to diagnose the pregnancy by ultrasound, and ultrasounds are not effective at diagnosing early pregnancy until a period is missed, generally two to three weeks post ovulation. This code section says nothing at all about contraception, and Plan B is defined as contraception, medically and legally. The media and speculative hysteria about Plan B being banned on college campuses in Idaho is completely unnecessary under this Idaho law.

This 2021 statute is terrible, because it is so broadly written that it is chilling perfectly legal speech. The statute is written so that it bans even the legislative committees working for the special protection of women or children from promoting abortion services. Some abortion care remains legal in Idaho, even post-Dobbs, and even under the Idaho trigger bans. Namely, victims of rape or incest may procure legal abortions in Idaho. Women who may die from a pregnancy can procure legal abortions in Idaho. The First Amendment allows us to talk about and promote legal activities in this great country.

Further, the older 1972 statute is also illegal and unconstitutional for the same reasons, until or unless the United States Supreme Court changes its mind about allowing promotion of legal contraception and abortion services. Criminal laws cannot be applied retroactively under the Ex Post Facto clause of the United States Constitution. I understand concern that the current Supreme Court may decide that states like Idaho can ban contraception and all forms of abortion, but they have not done that yet. If they do that in the future, Idaho can criminalize this activity prospectively, but Idaho cannot do anything about it now, criminally, because this is protected speech right now under current First Amendment case law.

Which brings me back to my concern. Why are the Universities doing this, all at the same time, six weeks before an election, and in the context of consistent media reports that young people on college campuses all over Idaho are registering to vote at high rates? Concern about a future hypothetical test case in the United States Supreme Court, which cannot impact criminal statutes retroactively in any event, is not good reason to stop full offering contraceptive services or banning speech about it on campus when it is all perfectly legal under current Idaho law. Even if the United States Supreme Court eventually says it is okay to limit speech concerning illegal abortions, they have not done it yet, and they can’t do it retroactively. Right now, their precedent says that abortion care can be promoted and advertised. There is no good reason that I can see to chill speech weeks before an election on a topic of critical importance to the faculty, staff, and students.

“If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.”  George Washington. 

            “In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own.  Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”  Benjamin Franklin.

            “Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.”  Benjamin Franklin.

            “There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”  James Madison.

            “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”  Oliver Wendell Holmes, US Supreme Court Justice.

            “Let us dare to read, think, speak and write.”  John Adams.

 Justice Scalia, one of the most conservative Supreme Court Justices of the modern era, and a fierce constitutional originalist, defended these First Amendment principles with vigor:  “The first axiom of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”  R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).  In a case involving California’s attempt to regulate the distribution of violent video games to minors under an obscenity statute, Justice Scalia wrote the majority opinion rejecting the attempt:  “…the obscenity exception to the First Amendment does no cover whatever a legislature finds shocking, but only depictions of sexual conduct.”  Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011). 

Content based regulations on speech are “presumptively unconstitutional.”  Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).  Content-based restrictions “completely undercut our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”  Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 96 (1972). 

This is a country founded on the bedrock principle that the government will not abridge the free flowing sharing of ideas, without very good reason.  The exceptions to the First Amendment are very well delineated.  The government may not issue prior restraints on speech just because some do not like the message.  It is now more important than ever that we have full and honest discussions with each other about these important issues, because now the states must make difficult choices about how the government should or should not regulate these plainly intimate and personal choices for their citizens.  These principles are heightened in academic settings, because the nation’s commitment to academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Bd. Of Regents, 385 U.S. 589, 602-04 (1967).

Idaho law also has a very long history and tradition of promoting freedom of speech and freedom of ideas.  Idaho Constitution Article 1, Section 9:  “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty.”  We need to honor that tradition.  Idaho statutes must bow to the Idaho and US Constitutions.   

The University of Idaho has already been served with at least one “cease and desist” letter threatening litigation if they do not modify their policy.  I suspect others will join very soon, and Idaho is about to face another embarrassing lawsuit that cannot be defended.  Tax dollars will again be wasted. 

The University of Idaho policy needs to be rescinded and rewritten in a way that acknowledges the freedom of speech principles at stake.  People of reproductive age need to be able to get accurate information from trusted sources, and academic institutions need the freedom to allow full and robust discussion about issues of critical and topical public importance.  All of these unconstitutional “zombie laws” have got to be rescinded and rewritten so they do not chill free speech.

My concerns about the University of Idaho’s content based restrictions on speech concerning abortion and contraception, and about the statutes on which it relies, extend well beyond abortion.  Idaho along with other conservative areas of the country are seeing a wave of people trying to control the expression of ideas that they do not like, in public schools and in public libraries.  I believe they are a vocal minority, and we need to end voter apathy and stand up for our rights.  It is antithetical to our Constitutions, state and federal.  It is antithetical to a truly free society.  The speech being targeted here and elsewhere is not dangerous.  It is not obscene.  Our children are not exposed to pornography in public schools or in public libraries.  CRT is not a threat that warrants violating the First Amendment and the Idaho Constitutional principles I have outlined here.  (those laws are also unconstitutional for the same reasons…)

We should not be afraid of ideas in this great country, even when we don’t agree with them.  We should be very afraid of those who would limit our rights to express them. 

Mary Shea

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