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U. of Idaho may stop providing birth control under new abortion law

Employees could be charged with a felony and fired if they appear to promote abortion, according to new guidance

Demonstrators march from Freedom Plaza to the Supreme Court in Washington on Oct. 2, 2021, in an effort to bring awareness and support for the fight for abortion rights. (Amanda Voisard/for The Washington Post)

The University of Idaho’s general counsel issued new guidance on Friday about the state’s near-total abortion ban, alerting faculty and staff that the school should no longer offer birth control for students, a rare move for a state university.

University employees were also advised not to speak in support of abortion at work. If an employee appears to promote abortion, counsel in favor of abortion, or refer a student for an abortion procedure, they could face a felony conviction and be permanently barred from all future state employment, according to an email obtained by The Washington Post.

Idaho’s trigger ban took effect on Aug. 25, approximately two months after the Supreme Court reversed Roe v. Wade. That law, which was passed by state lawmakers in 2020, bans abortions at any time after conception, except in instances where the pregnant person’s life is at risk or in cases of rape or incest so long as the crime was reported to law enforcement.

The guidance from the general counsel also cited a section of the Idaho penal code passed in the 1970s.

“In this new and evolving legal landscape, how these laws will be enforced remains unclear,” the University of Idaho’s general counsel wrote in the Sept. 23 message to all university employees. “Accordingly, the university and its employees should be aware of the potential risks and penalties associated with conduct that may be perceived to violate the laws.”

Because the language of the law is “unclear and untested,” the message reads, “we are advising a conservative approach here, that the university not provide standard birth control itself.”

Condoms could be provided “for the purpose of helping prevent the spread of STDs,” according to the guidance — but not “for purposes of birth control.”

Almost all of the universities providing clinical sexual health services in a 2020 American College Health Association survey offered contraceptives, with nearly three quarters of those responding providing emergency contraception options as well.

Jodi Walker, the executive director of communications at the University of Idaho, said the university “follows all laws.”

“This is a challenging law for many and has real ramifications for individuals in that it calls for individual criminal prosecution. This guidance was sent to help our employees understand the legal significance and possible actions of this new law passed by the Idaho Legislature,” Walker wrote in a statement emailed to The Post on Monday.

The school’s general counsel, Jim Craig, who did not sign his name to the email outlining the new guidance, did not respond to a request for comment.

Leading antiabortion advocates have long held that they are not interested in restricting access to birth control. Kristan Hawkins, president of Students for Life of America, one of the country’s largest antiabortion organizations, said she doesn’t know of any antiabortion advocates who have called for birth control to be restricted on college campuses.

“We certainly have not called for that,” said Hawkins. While Hawkins would eventually support restrictions on some forms of emergency contraception, she said the movement needs to end abortion across the country first.

Abortion rights advocates were quick to point to the University of Idaho’s new policy as evidence of the antiabortion movement’s broader ambitions.

“We always knew extremists wouldn’t stop at banning abortion; they’d target birth control next,” Rebecca Gibron, chief executive of Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, wrote in a statement. “The University of Idaho’s announcement is the canary in the coal mine, an early sign of the larger, coordinated effort to attack birth control access.”

Many schools are still evaluating policies in the aftermath of the Supreme Court’s decision to overturn Roe. The American College Health Association called the ruling in June “deeply distressing” and wrote that the ruling and the state laws triggered in its wake “will directly endanger college health professionals’ ability to provide evidence-based, patient-centered care, and may place them in legal jeopardy.”

At Vanderbilt University in Tennessee, where a near-total ban on abortions took effect in August, school officials convened a reproductive-health task force and announced in late August stronger support for reproductive health and parenting, naming a new leader to coordinate such resources for the university community. Student health officials assured students that contraception, including IUDs, Nexplanon, pills and emergency contraception, would continue to be available.

In Michigan, where a 1931 ban on abortions has been ruled unenforceable by the courts, state university officials have voiced strong support for abortion access.

“I will do everything in my power as president to ensure we continue to provide this critically important care,” Mary Sue Coleman, the president of the University of Michigan, wrote in a statement in June, after the Supreme Court ruling.

Staff and faculty at the University of Idaho have been reluctant to discuss the new guidance, said one employee, who spoke on the condition of anonymity to protect her job.

“I think there’s a lot of fear,” said the employee, who said she cried in her office after receiving the message on Friday afternoon.

“I think about the resident hall advisers. This is the kind of advice they give out if students are sexually active and not ready for a family,” she said. “Now it’s the kind of thing that could get them fired and charged with a felony.”

Katie Shepherd contributed to this report.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.