You Can Hand Out Condoms on This Campus — Just Not If They’re to Prevent Pregnancy
Just eight miles of rolling Palouse hills separate the college towns of Moscow, Idaho, and Pullman, Washington, but for decades they’ve existed as fiefdoms with rival laws. Back in the Eighties, when the drinking age in Idaho was still 18, students from Washington State University in Pullman would cross the state line to get blitzed in Moscow alongside University of Idaho undergrads. A few years ago, a weed shop opened just west of the state line in Washington, where Idaho state troopers are said to idle just beyond the parking lot, waiting to pull customers over the moment they cross into their jurisdiction.
Today, students are crossing the state line in search of reproductive health care and birth control no longer accessible to them in Idaho, says Katie Hettinga, a senior at the University of Idaho. After Roe v. Wade was overturned this summer, abortion became illegal in all but an extremely limited set of circumstances in Idaho, and thanks to a separate law passed by the reactionary state legislature, there is now an earnest debate over whether abortion can even be discussed openly on public college campuses.
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On a Friday afternoon in late September, one month into the fall semester, employees at the University of Idaho received an email from the school’s general counsel: seven bullet-pointed pages of legal advice on how to keep from running afoul of Idaho’s abortion laws. The memo outlined a long list of activities that could potentially be considered illegal, and thus were to be avoided, including “promoting abortion” and providing birth control for the purposes of preventing pregnancy. (It was probably still OK, the university’s lawyer wrote, to distribute condoms if their purpose was to prevent STDs.)
And while nothing in any of the laws technically barred employees from directing students to “private groups or agencies of another state” — a reference, some believed, to the Planned Parenthood in Pullman — the email advised employees that they ”must remain neutral on the subject of abortion” in virtually any circumstance in which it might come up, or else risk criminal prosecution, fines, jail time, and a lifetime ban on state employment. “Academic freedom,” the letter warned, “is not a defense to violation of law.”
The memo was drafted by Kent Nelson, general counsel emeritus of U of I, who came out of retirement this year while the school’s current general counsel, Jim Craig, is on leave. The email was Nelson’s attempt at making sense of two separate Idaho laws: a 1972 ban on advertising medicines for “prevention conception or facilitating miscarriage or abortion” — newly back in effect post-Dobbs — and the No Public Funds for Abortion Act, enacted more than a year earlier. The university’s chief academic officer, provost Torrey Lawrence, later told faculty he had not seen the email before it was sent. A representative for the University of Idaho told Rolling Stone she didn’t know who, if anyone, in the administration read it before it was blasted out to thousands of employees.
The fallout was swift. “My gut reaction was just: This is ridiculous. And this is also harmful,” Hettinga says. She wasn’t alone: students, faculty, staff, and community members in Moscow were unnerved by the guidance. If it was intended to clarify the state’s laws, Nelson’s memo had the opposite effect, casting a paranoid pall over the campus, and igniting a dispute about whether the university was not just overstepping its bounds with the advice, but risking the students’ health, the faculty’s livelihood, the school’s own reputation, and its academic accreditation.
In a matter of days it mushroomed into a national media story. Eventually even President Joe Biden weighed in on the memo. “What century are we in? What are we doing?” Biden asked. “My lord, we’re talking about contraception here. It shouldn’t be that controversial.”
In the weeks since the memo was sent out, the student club dedicated to sexual and reproductive health has debated whether or not they needed to use a Sharpie to cross out the words “to prevent pregnancy” on the condoms they hand out on campus every Friday. Campus groups that would normally turn out for rallies in support of abortion rights in Moscow were suddenly cowed by the idea that they might get their faculty sponsor in trouble. Sara Zaske, an organizer with the local chapter of Bans Off Our Bodies, says the clubs she usually partners with for demonstrations “told me they were not allowed to speak about abortion or contraception” in the wake of the memo.
“We don’t know what we can talk about. That’s the biggest issue right now,” says student Martha Smith. “People are pretty much radio-silent about it. I have a friend who is writing a paper about Roe v. Wade. Now the professor is apprehensive to even grade it. Here we are six weeks into the 12-week semester.” Smith is the Senate Pro Tempore of ASUI, the university’s student government, and co-author of a resolution passed by the ASUI calling on the administration to “stand up for its employees and students” and revise the guidance to make it clear that speech about abortion and contraception is protected on campus.
In the days that followed the email, there was a growing sense among some faculty that the university, in fact, had no plans to stand up for them, the way administrators had in previous clashes with the state legislature. To the contrary, it was starting to feel as if the university was taking the broadest possible interpretation of the law, going even further, in some ways, than the state legislature itself. Those fears were only inflamed by a meeting of the faculty senate, where Nelson answered questions about the advice he’d provided.
Why did the memo include a mandate to remain neutral in classroom discussions, when the law itself didn’t, professors wanted to know. If there was a mandate on neutrality in the classroom, did it extend to professors’ academic research as well? What did “neutrality” on the subject of abortion mean, anyway — did instructors risk criminal charges, for instance, if they shared statistics that showed that the legalization of abortion was followed by steep declines in violent crime and property crime? (“I really can’t say with certainty,” Nelson replied to that hypothetical.)
One professor asked if she would risk prosecution if she wore a T-shirt with a pro-choice slogan on it outside of the classroom. “It’s very seldom that I get asked fashion advice,” Nelson joked. (“Enraging,” one employee present told Rolling Stone of the general counsel’s response to that question. “A combination of paternalistic scolding and mockery.”)
Most alarming of all for some faculty was Nelson’s mealy-mouthed response when he was asked point-blank if the university itself would be reporting professors to law enforcement for alleged violations of the law. “I don’t think the university has yet come completely to grips with how this is going to apply on a policy basis and on an institutional-enforcement basis yet,” Nelson said, according to a transcript of the meeting reviewed by Rolling Stone.
“The idea that the university would be referring faculty to criminal prosecutors is just terrifying,” Aadika Singh, legal director at the ACLU of Idaho, says. The organization is interviewing students and teachers, with an eye toward mounting a constitutional challenge to Idaho’s law. The right-aligned Foundation for Individual Rights and Expression has also sent a letter to the university indicating it is considering litigation against the school. “It’s one thing to point out that this law exists that could be interpreted broadly, but the next sentence should be, ‘And if it is interpreted that broadly, we will stand shoulder-to-shoulder with you to ensure that your First Amendment rights are protected,’” FIRE attorney Adam Steinbaugh says. “That’s absent here.”
Luigi Boschetti, a professor at the university and president of the local chapter of the American Federation of Teachers, believes the university has been put in a difficult spot by state lawmakers. “This is the situation we live in in Idaho, with the extreme Idaho Legislature. The law is extreme. This is something that criminalizes state employees for expressing opinions,” Boschetti says. “Had we not had the memo, we would not be as aware of the law. But the law would still be there. It might not be enforced now, but there’s no guarantee that it will not be applied at some point.”
Boschetti was personally relieved when, nearly two weeks after the initial guidance touched off a firestorm, the university finally sent out a follow-up email. This missive, signed by the university President Scott Green and provost Torrey Lawrence acknowledged the memo “quickly took on a life of its own with misinformation, confusion, and emotion leading the conversation.”
The pair went on to assure the campus community that “no university policies have been added or changed. … There are no changes to our academic freedom policy. The university supports faculty leading discussions on any related educational topic within the classroom.” Condoms, they said, would “continue to be available in restroom dispensers and campus offices. The Vandal Health Clinic and its sister clinics operated by Gritman Medical Center will continue to meet the reproductive health needs of all students and employees.”
But administrators sidestepped the questions of whether the university would refer professors found violating the law to local police, and did not say whether it would defend them if they were targeted for criminal prosecution, writing simply: “The university does not impose criminal charges nor conduct criminal investigation.”
Boschetti called the follow-up “excellent news.” But his colleague, Johanna Gosse, a professor of art history took a different view: “The second memo basically says we’re all a bunch of hysterical feminists.” Gosse was particularly galled, she says, by the part where “the president chastises people for being ‘emotional.’”
“Civil rights and human rights are emotional issues,” Gosse says. “I don’t think that should be a news flash to upper administration at the university. Abortion, bodily autonomy, free speech: They are emotional issues. And weaponizing anger against people has been a hallmark of patriarchal oppression from time immemorial.”
“There was zero thinking through of the cultural, psychological, and political consequences of instructing faculty to not address reproductive health at risk of prosecution,” Gosse says. Like many of the faculty and students who spoke to Rolling Stone, Gosse remains deeply frustrated by the university’s ham-fisted handling of the situation, which she characterized as “a form of institutional gaslighting: by fundamentally refusing to answer questions, and then when people get worried, get afraid, try to do due diligence, and do their jobs without getting arrested or getting prosecuted or getting hounded out of their jobs, essentially, telling them to ‘calm down.’”
On campus, Ashley Paine, a senior, says there is still “a lot of outrage” — and much of that outrage is being channeled into voter registrations. The students recognize “this is a direct impact from legislation,” she says. Paine, who is studying resource management, says the law hasn’t made her consider leaving the state — it’s motivated her to vote out the state’s extreme legislators: “I’m here for the fight.”
Before Dobbs, 70 percent of women registering to vote in Idaho were registering as Republicans; today, only 43 percent of women are, according to data collected by the group TargetSmart. The same group has found that new registrations by women under 25 in the state outnumber those by men by 20 points. That’s encouraging news to Sara Zaske of the Moscow chapter of Bans Off Our Bodies. Zaske points to Kansas, where an anti-abortion ballot measure was handily defeated this summer. “If they can do it there, we can do it here,” Zaske says. “You can make change, even in Idaho.”
The ACLU, meanwhile, is still interviewing faculty and students, contemplating a constitutional challenge to several of Idaho’s laws — though its lawyers say they have not decided against whom or where that challenge might be filed. At the same time, they have been working to match faculty with, in Singh’s words, “an army of employment attorneys ready to represent, at free or low cost, faculty that are experiencing any sort of adverse employment action.”
“Faculty are coming to us, and they’re coming to other attorneys outside of the university setting, because they’re not getting what they need,” Singh says. “The university doesn’t have their back. It has not offered to represent or support faculty who are engaged in First Amendment–protected activity, which includes advocating for a person’s right to get an abortion, publicizing truthful, general information about how to get an abortion, encouraging people to make their own reproductive health choices. All of those things are protected by the United States Constitution’s First Amendment.”
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