Federal Court Rules Idaho Officials Will Not Enforce Abortion Censorship Law Against Public University Professors

BOISE, Idaho — The U.S. District Court for the District of Idaho denied a request by six Idaho professors and two teachers’ unions for a preliminary injunction against the state’s No Public Funds for Abortion Act (NPFAA), a law that makes it a crime to use public funds to promote or counsel in favor of abortion. The court found that the professors could engage in their planned teaching and scholarship without fear of prosecution because of explicit statements — made by the Idaho attorney general immediately following the filing of this lawsuit — that the law did not apply to academic speech.

“The NPFAA shut down academic inquiry about abortion — one of today’s most urgent social, moral, and political issues — across Idaho public university campuses. Only after we filed this lawsuit did the attorney general suddenly interpret the statute as inapplicable to this kind of academic speech.” said Scarlet Kim, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The court correctly acknowledged the dangerous threat to the First Amendment posed by the NPFAA, and we are pleased that it and the attorney general have recognized that professors can engage in academic speech without fear of prosecution.”

Before this case was filed, as a result of the NPFAA and legal guidance from their own universities, professors teaching about abortion across myriad disciplines were forced to censor course content; curtail lectures and class discussion; stop advising student research and writing; and avoid pursuing their own scholarship. However, after the ACLU filed this lawsuit, the attorney general issued an opinion stating that the NPFAA “does not prohibit university employees from speaking on abortion in their academic teaching or scholarship, even if that teaching or scholarship could be viewed as supporting abortion or abortion rights in general.”

As the court explained in its decision, it agreed with the university professors that a one-sided prohibition only on “speech that promotes or counsels in favor of abortion, while permitting speech that denounces or counsels against abortion” is “blatantly unconstitutional.” However, based on the attorney general’s commitment not to enforce the NPFAA against professors’ academic speech, the court concluded that the professors could resume engaging in constitutionally protected speech without fear of prosecution.

“For university employees and students, the NPFAA was a minefield that made reasoned discussion impossible. How could we teach about U.S. society without addressing abortion — one of the defining cultural and political issues of the day?” said Martin Orr, president of the Idaho Federation of Teachers. “Our educators and students deserved better and we are encouraged that they may now resume robust discussion about this important topic.”

The NPFAA is just one of many attempts in Idaho to attack reproductive health care and abortion — including by censoring information about essential care — in the wake of Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.

“It’s vital for Idaho’s public universities to have autonomy in fostering vibrant debate on their campuses, free from government interference,” said Paul Carlos Southwick, legal director of the ACLU of Idaho. “Idaho’s abortion censorship law directly undermined that autonomy, attempting to restrict educators’ free speech and stoke fear of retaliation for such speech in our state. We’re heartened that the court recognized the dangers of such interference with the First Amendment and we will keep fighting to protect the fundamental rights of educators and students across Gem State university campuses.”

The plaintiffs are represented by the American Civil Liberties Union, the American Civil Liberties Union of Idaho, Professor Seth Kreimer, and the law firm Scholnick Birch Hallam Harstad Thorne.