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Idaho universities disallow abortion, contraception referral

Idaho universities are warning staffers not to refer students to abortion providers or tell them how to get emergency contraception as they could face felony charges
Credit: AP
FILE - Protestors march through downtown Boise chanting pro-abortion rights slogans on their way to the Idaho Capitol steps, June 24, 2022 in Boise. The U.S. Department of Justice asked a federal judge this week to bar Idaho from enforcing its near-total abortion ban while a lawsuit pitting federal health care law against state anti-abortion legislation is underway. (Darin Oswald/Idaho Statesman via AP, file)

BOISE, Idaho — Idaho universities are warning staffers not to refer students to abortion providers or tell them how to get emergency contraception because they could be charged with a felony under a new state law.

One of the universities is also barring employees from telling students how to get birth control, because of a separate law first written more than 150 years ago that was last updated nearly half a century ago.

The guidance from the University of Idaho and Boise State University represent the latest restrictions in a state that already holds some of the strictest abortion laws in the nation.

“This is going to have a very broad impact. It's going to have a very strong chilling effect on free speech,” said Mike Satz, an attorney and former faculty member and interim dean at the University of Idaho’s College of Law. “I'm afraid it's going to scare people from going to school here or sending their kids to school at Idaho institutions.”

The prohibition against referring students or “promoting” abortion in any way comes from the “No Public Funds for Abortion Act,” a law passed by Idaho's Republican-led Legislature in 2021. Boise State University, like the University of Idaho, told faculty members in a newsletter earlier this month that they could face felony charges for violating the law. Idaho State University did not respond to phone messages from The Associated Press asking if it had issued similar guidance.

The law also bars staffers and school-based health clinics from dispensing or telling students where to obtain emergency contraception except for in cases of rape. Emergency contraception drugs prevent pregnancy from occurring and do not work in cases where someone is already pregnant.

The University of Idaho's guidance goes a step further, also warning employees about a pre-statehood law first written in 1867. That law prohibits dispensing or “advertising” abortion services and birth control — leading to UI's advice that condoms be distributed only to prevent sexually transmitted diseases, but not to prevent pregnancy. Lawmakers last updated the law in 1974, roughly a year after the U.S. Supreme Court said women have the right to abortion in the landmark ruling Roe v. Wade.

But now that Roe v. Wade has been overturned, state agencies are trying to navigate a morass of tangled reproductive health care laws.

It's not yet clear how the the law barring “advertising or promoting” abortion and birth control services could impact students or other state employees who may use state-owned computers or wireless networks to share information about how to access reproductive health care on Instagram or other social media sites. Scott Graf, a spokesman for Idaho Attorney General Lawrence Wasden, said his office planned to discuss the guidance given to university staffers and the abortion laws in an internal call on Tuesday.

Jodi Walker, spokeswoman for the University of Idaho, said the university follows all laws and said UI officials were still “working through some of the details.”

“This is a challenging law for many and has real ramifications for individuals in that it calls for individual criminal prosecution,” she said of the public funds law. “The section does not specify what is meant by promoting abortion, however, it is clear that university employees are paid with public funds. Employees engaging in their course of work in a manner that favors abortion could be deemed as promoting abortion.”

Abortion can still be discussed as a policy issue in classrooms, Walker said, but the university recommends that the employees in charge of the class “remain neutral or risk violating this law.”

“We support our students and employees, as well as academic freedom, but understand the need to work within the laws set out by our state,” she said.

That could be nearly impossible, said Satz. Both the University of Idaho and Boise State University rely on grants to fund major research and academic projects, and the federal government is among the largest sources of those grants. The federal government also provides abortions through the Veteran’s Administration, Satz noted, and the “No Public Funds for Abortion Act” bars the state from contracting with abortion providers.

Rebecca Gibron, the CEO of the regional Planned Parenthood organization that serves Idaho, called the guidance “the canary in the coal mine.”

“These attacks on birth control are not theoretical. They are already happening,” Gibron said in a prepared statement. “The University of Idaho's new policy is just the latest example of extremists and draconian laws threatening to strip us of all control over their reproductive health care.”

Idaho's lawmakers could fine-tune the laws to ensure they don't violate 1st Amendment free speech rights or lead to major funding losses, but the deeply conservative state Legislature isn't scheduled to meet again until January.

Boise State's advisory to employees noted that abortion-producing medications or procedures can still be prescribed if they are used to remove a dead fetus, to treat ectopic pregnancy or to “preserve the health of the unborn child.” But some of those scenarios are gray areas under other state laws criminalizing abortions, including one targeted in a U.S. Department of Justice federal lawsuit against the state of Idaho.

Idaho isn't the only state where employees have been cautioned not to give abortion advice. Social workers, clergy members and others have raised concerns in Oklahoma about being exposed to criminal or civil liability just for discussing abortions.

Lisa Bostaph, a criminal justice professor at Boise State University, said she didn't understand how the birth control law could be enforced, since the U.S. Supreme Court in 1965 said states can't criminalize the use of contraception. She fears Idaho's laws will have vast repercussions.

“Unintended pregnancies can dramatically impact a woman's ability to complete higher education,” Bostaph said in a morning phone interview from her home, before her work day began. “As a faculty member, how do we have conversations about abortion and birth control in a neutral manner?”

That seems easy enough to do in many general classroom discussions, Bostaph said, but it's likely much harder when students are studying topics like medicine or the criminal justice system.

Nursing students will need to learn about when and why birth control is prescribed, and criminal justice students may have assignments related to reproductive coercion or the increased homicide risk experienced by that pregnant domestic violence victims, Bostaph said.

“If the science says the right thing to do is to provide birth control in this patient, is presenting that information neutral?” she asked.

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