Professors’ Free Speech Challenge to Idaho Abortion Law Is Nixed

An Idaho statute that university professors say criminalizes discussing pro-abortion viewpoints in the classroom can remain in place after a federal judge ruled the teachers don’t have standing to challenge it.

Because the Attorney General, who enforces the statute, says it doesn’t impact classroom speech and he wouldn’t prosecute the professors, “the Court must stay in its lane and dismiss this suit, Judge David C. Nye said Tuesday.

The suit, in the US District Court for the District of Idaho, challenged the constitutionality of Idaho’s 2021 “No Public Funds for Abortion Act,” which says “no public funds” shall be used to “counsel in favor of abortion.” The statute also says that "[n]o person’ who ‘receives [public] funds...may use those funds to...promote abortion.”

The NPFAA imposes criminal penalties, with public employees subject to imprisonment for up to fourteen years and fines of up to $10,000.

An Idaho teachers’ union representing university professors, and individual professors, sued Idaho Attorney General Raul Labrador and other state officials in 2023. Their suit asks the court to strike the statute as a violation of the US constitution’s free speech protections.

Labrador moved to dismiss, arguing the statute’s term “counsel” refers to giving “advice or help with a specific situation.” Teaching about abortion, including discussion of pro-abortion arguments, wouldn’t be impacted by that term, he said. And “promote” in the statute doesn’t “refer to the abstract teaching and scholarship of abortion conducted by university professors.”

Labrador cited a letter he sent Idaho legislators asking for an interpretation of how the statute impacts teachers.

For a plaintiff to have standing to bring a pre-enforcement suit, “the threat of future enforcement must be ‘substantial,’” Nye said, citing a 2014 US Supreme Court decision. The “mere existence of a proscriptive statute” and a “generalized threat of prosecution” doesn’t satisfy a plaintiff’s constitutional requirement to bring a suit involving a “live case or controversy,” Nye added, citing a 2000 Ninth Circuit opinion.

While Nye said the court is “not entirely convinced” that Labrador’s interpretation of the statute is accurate, the court “cannot find Plaintiffs have a substantial fear of harm” under the Supreme Court and Ninth Circuit precedents.

Strindberg Scholnick Birch Hallam Harstad Thorne, Latham & Watkins LLP, American Civil Liberties Union Foundation, American Civil Liberties Union of Idaho Foundation, and professor Seth F. Kreimer at the University of Pennsylvania Carey Law School represent the teachers.

The case is Idaho Fed. of Teachers v. Labrador, D. Idaho, No. 1:23-cv-00353, 7/2/24.