Post Roe, Idaho’s Free Speech Is In Peril
State universities reel from Idaho’s threat to prosecute talk that “promotes abortion.” What will they ban next?
I received my first IUD at nineteen at a Planned Parenthood clinic in Boise, Idaho. Teeth grit and legs splayed, I stared up at the fluorescent heavens thinking, birth control founded the modern feminist movement. Afterward, triumphant and dizzy from pain, I hobbled into the waiting room and was ushered into a new era of sexual freedom.
Liberation was no longer theoretical. I was embodying the same politics I was studying.
While my decision to get an IUD was a joyful and ultimately easy one, I recognize it never would have happened if it weren’t for open conversations about reproductive rights among peers and faculty throughout my schooling.
These conversations instilled in me a conviction that discussing these rights in academic spaces is crucial in developing political consciousness and personal freedom.
But post-Roe in Idaho? This pivotal freedom and agency around reproductive rights — and whether you can even talk about them — is currently up for debate threatening first amendment rights and setting a dangerous precedent.
At the tail end of September, a gag order memo on abortion was emailed to students and employees at the University of Idaho, stating that “university employees who are found to have violated the gag order by promoting abortion, or by dispensing contraception, risk felony convictions, prison time, fines, firing and permanent bans from all state employment.”
This memo robs burgeoning adults, rapidly becoming sexually active, from engaging in vital conversations around their reproductive health — conversations that will determine everything from bodily autonomy and pregnancy to issues of race, gender, and class that underpin access to abortion. And for those looking to advise the youth they’ve been hired to educate? Their livelihoods are now on the line.
The Idahoan Landscape Around Reproductive Justice
Abortion bans have gone into effect in more than a dozen states since the court overturned the Roe v. Wade ruling this past June; the overturning of Roe triggered three abortion-related laws in Idaho.
One bans all abortions except in cases of rape, incest, and threats to the life of the mother — dangerously vague language that we saw trigger mass uncertainty in Michigan. A second prohibits abortion after six weeks of pregnancy. And a third allows the family of an aborted fetus to sue the doctors for $20,000 or more.
But two additional (and more obscure) laws lurching back to life — a 1972 ban on advertising medicines and a 2021 No Public Funds for Abortion Act — are what’s fueling the confusion and turmoil for the University of Idaho.
In an attempt to publicly make sense of these two laws, University of Idaho General Counsel Kent Nelson used the gag memo to warn employees against promoting abortion or services for the “prevention of conception,” along with the recommendation that all faculty “proceed cautiously” and remind students that Idaho law prohibits counseling in favor of abortion.
Madison Fitzgerald, the student council vice president at the University of Idaho, was writing a policy brief about abortion in Idaho the very day the memo was sent out. She wondered if she’d still be able to write the essay and described her anxiety over the future of birth control at school:
“We actually had condom maps which tell you where you can get condoms on campus. A lot of people were worried that they would be taken away.”
In the wake of the faculty and students collectively reeling — what exactly did this memo mean for their teaching and education? — a second email was sent a week later, which attempted to clarify some questions, including Fitzgerald’s.
Regarding contraceptive access, the memo clarified, “There is no change to student access to contraceptives,” which includes condoms provided through student health clinics.
“Students aren’t subject to the gag order in their work, but it does impact the guidance and education they could receive from a professor,” Fitzgerald explained.
These cryptic missives aim to protect students and faculty against prosecution by reminding them of their new post-Roe reality. And while no new policies were implemented, the memo served as a disquieting reminder of the sudden lack of federal protections.
The Danger of “Neutrality”
Birth control may be allowed on campus, but the laws around abortion and free speech are so muddled that no one can determine the degree of risk involved in discussing abortion in a “non-neutral” way.
Idaho public employers must follow the law and cannot talk about abortion and the university must comply, notes Mike Satz, a former law professor and executive director of UI Boise, in an interview with Idaho Capital Sun.
“It creates a chilling effect, and this series of laws are just that,” said Satz.
“This is being shown now when the faculty are too afraid of giving their names in news stories. This is not how we educate people. This is a muddled mess of new law plus older law, some of which is lifted from territorial law, which is where you get the ‘don’t talk about birth control’ mess.”
Art history professor Dr. Johanna Gosse told me, “a lot of my colleagues seem anxious about speaking on the record with journalists, which I find disappointing and sad.”
And how is the ambiguity around “remaining neutral” on abortion impacting Idaho students?
For Fitzgerald, it means she no longer feels comfortable articulating her political views on campus. She quickly realized the challenges of openly discussing abortion while working alongside faculty to draft a statement about the future of free speech in classrooms that would be sent out to students.
The painful irony was not lost on her.
“When [the student body president] and I ran for office, one of our biggest points was getting students more civically engaged and [helping them] understand that the state really has a chokehold on public universities. It’s not just the University of Idaho. It’s Boise State. It’s Idaho State University, and Lewis and Clark.”
A Ph.D. student and university employee — who asked to remain anonymous — told me about the rapidly evolving challenges of discussing abortion in social settings on campus: “I trust my friends, but I don’t trust if someone walks by and overhears — are they going to say something? ‘Oh, this employee was promoting abortion’ just because I was talking about it.’ So for sure, there’s definitely a lot of people now who are more hesitant.”
The Conflict Between State Education and the Idaho State Government
This lack of clarity surrounding the risks of discussing abortion chills dialogue and critical thinking in academic, social, and public spaces, but there is an additional, not-so-latent threat to state universities’ funding too.
The Idaho Legislature maintains a fraught history with progressive policies — the state is no stranger to killing budgets to protest ‘liberal agendas.’
“Educational funding is at stake,” declared a Moscow City council member and University of Idaho alum who also chose to be anonymous. “This reflects a larger tension between state legislature and higher education.”
In 2021, the state government banned affirmative action and cut $1.5 million from Boise State’s diversity, equity, and inclusion department’s budget.
The impact of the state government on free speech in schools extends from higher education to local school districts as well.
The same year, Republican Heather Scott criticized a substitute teacher for teaching To Kill A Mockingbird, arguing that the novel is illustrative of “critical race theory creeping through our schools.” This incident created the framework for House Bill 377, a bill that bans any subjects that suggest any sex, race, ethnicity, religion, color, or national origin should be treated differently or are “responsible for actions committed in the past.”
(The following year, Scott also introduced House Bill 666, which aimed to create a mechanism for librarians to be sued or arrested for checking out a book to children if their parents don’t approve.)
The Moscow City Council member was not optimistic about the future of Idaho legislatures protecting free speech in classrooms or progressive dialogue in public spaces. “The likelihood is fifty-fifty as to whether or not firebrand bills like these will pass in the House,” they told me.
The Long-term Impacts on Medicine
Hesitancy to engage in open dialogue around reproductive rights is rampant within Idaho’s medical community, notes Dr. Cynthia Brooke, an OB-GYN who lives in Boise. She writes letters to the editor of the Idaho Statesman and “lets it rip,” because she primarily practices in California.
“I don’t have to worry about losing my job, but local doctors can’t do that without fearing repercussions.”
Brooke believes that the voluntary termination of pregnancy is central to the birthing process. “OB-GYN departments are the core of any hospital,” she said. “If you can’t supply full family care, the other specialties suffer too. Who’s going to go there if you can’t supply the routine care that families need?”
Conservative states like Idaho already have difficulty attracting OB-GYNs who perform abortions. This lack of medical care creates abortion deserts — places where people must travel more than 100 miles to reach a clinic.
Last year, the Senate Education Committee passed House Bill 718 which requires graduates of Idaho’s state-funded medical school to practice in the state for at least four years.
HB 718 outlines requirements for students who are accepted into the Washington, Wyoming, Alaska, Montana, and Idaho Regional Medical Education Program, better known as WWAMI, at the University of Idaho. WWAMI is also the only medical school that is partially funded by state dollars and graduates a significant number of rural doctors.
The four-year residency requirement, coupled with Idaho’s increasing restrictions on abortion, disincentivizes potential med students to come to Idaho and become rural practitioners.
Meanwhile, University of Idaho students cross the border from Moscow, Idaho to Pullman, Washington to receive abortion care. “One of the things I worry about is that given that Moscow and Pullman are both pretty small, a lot of health services are tied into both towns,” one student told me.
“For example, the OB-GYN we have here is the Moscow Pullman OB-GYN. So, I’ve been scared…if birth control became illegal, God forbid, here in Idaho, and I needed to get an abortion, would I even have health insurance in Washington? Can I go over to Washington if I’m a citizen of Idaho? How does that all play out legally?”
It remains unseen whether Idaho prosecutors can — or will try — to come after people who leave the state for legal abortions elsewhere.
And while these legal questions remain hypothetical, given the cascade of trigger laws across the country, the consequences of curbing — and punishing — free speech are already surfacing.
When I think about being subjected to gag memos forbidding talk about abortion, I think about losing political agency and personal empowerment. My transformative moments of inquiry ignited in educational spaces, prompted me to prioritize agency over my body throughout the entirety of my life.
The consequences of losing the candor and discovery that sits at the heart of open dialogue is not an abstraction, but a promise that a generation of youth will be lost to fear and ignorance: their right to choose ripped away — not just to an abortion, but to know and learn.
