BY JOHN K. WILSON
North Dakota has approved a new law to banish abortion rights advocates from public colleges in an extraordinary assault on academic freedom that violates the First Amendment.
On May 7, North Dakota Gov. Doug Burgum made a line-item veto of SB 2030. Gov. Burgum did make a partial veto of the bill’s most egregious and breathtaking assaults on free expression, which would have cut $2.8 million from colleges that violated it and required prosecution of anyone on campus who signed a contract with a group that supports abortion.
This partial veto created a lot of confusion. The Associated Press report had the misleading headline, “ND governor vetoes penalizing state colleges over abortions,” when in reality the governor did the exact opposite of that.
The new law still penalizes North Dakota State University and the University of North Dakota if they allow any links to abortion providers or supporters by a provision cutting $1.7 million allocated to each campus under the Higher Education Challenge Matching Grant.
The original goal of the legislation was appalling enough: Legislators were angry that a professor at North Dakota State University partnered with Planned Parenthood for a federal-funded research grant for abstinence-based sex education that has nothing to do with abortion.
This is six degrees of guilt by association: Legislators think abortion is evil, therefore anyone who provides abortions is evil, therefore Planned Parenthood is evil, therefore anything Planned Parenthood does (no matter how unobjectionable) is evil, therefore any professor who works with Planned Parenthood is evil, and therefore any university who employs any professor who works with Planned Parenthood is evil and must be defunded. Advocates of abortion rights are the new communists to be blacklisted. However, the wording of the law goes far beyond Planned Parenthood.
Here is what the North Dakota law requires: “The institution is not sponsoring, partnering with, applying for grants with, or providing a grant subaward to any person or organization that performs, or promotes the performance of, an abortion unless the abortion is necessary to prevent the death of the woman, and not participating or sponsoring any program producing, distributing, publishing, disseminating, endorsing, or approving materials of any type or from any organization, that between normal childbirth and abortion, do not give preference, encouragement, and support to normal childbirth.”
A ban on Planned Parenthood is terrible enough and indefensible. But this law goes far beyond banning one organization that provides legal medical services. The law prohibits “sponsoring…any person…that…promotes the performance of an abortion.” That seems to mean any speaker on campus supporting abortion would have to be prohibited.
As FIRE noted, “Under SB 2030, an institution would be unable to fund events dealing with sexuality or legal issues regarding reproductive rights, or even fund a pro-choice speaker, if any of the organizations or individuals involved took favorable views on abortion. The institution is also forbidden from financially supporting any event where any of the participants disseminate pro-choice literature.”
The law also bans state colleges from “participating” in any program that disseminates any materials (even if they’re not about abortion) from an organization that supports abortion rights. A list on wikipedia of organizations supporting abortion rights includes the Democratic Party, the Ayn Rand Institute, and the ACLU.
A May 11 letter from the North Dakota State University Faculty Senate to the Chancellor expressed deep concern about the law’s restrictions on academic freedom, and asked for a legal opinion from the North Dakota Attorney General to help clarify the law and reassure the campus about what is allowed. The letter noted, “the bill now signed into law remains a threat to academic freedom.” It added, “the vague formulation and broad scope of the language contained in the law will instill a climate of insecurity and fear of retribution….”
Incredibly, the same month that North Dakota passed this attack on campus free speech, it passed another law requiring public colleges to protect free speech, HB 1503.The new anti-free speech law punishes colleges for allowing any pro-abortion speakers or information, while the pro-free speech law passed by the same legislators a few weeks earlier requires the same colleges not to ban speakers or discriminate based on content. While hypocrisy about free expression is common, rarely do you find it shrieking in your face with this kind of intensity.
Faculty in North Dakota need to sue the state to protect their rights, and administrators must be willing to stand up forcefully against this law and refuse to obey its illegitimate, illegal, and unconstitutional demands. Academic freedom permits no blacklists.
This is a fascinating free speech issue, as you note. It may have some certain subtleties however, that somewhat dampen your absolutist position. The law appears to seek a distinction among abortion-on-demand, or discretionary abortion, versus medical or life-threatening termination. In that regard, it could be argued that the legislation takes on an advocacy role for the fetus, or in-womb human being, with human rights. That would re-classify the speech contention from free speech to one managing incitement that passes the clear and present danger test under Holme’s doctrine. That is, imagine yourself as the child, not quite ready to come out, and your external world is advocating for your execution. You might be quite pleased indeed, with the North Dakota Governor’s advocacy on your behalf. The organizations that seek to promote abortion such as “Planned Parenthood” (whose founder admitted its eugenics purpose), act to persuade young adults that infanticide is acceptable. In the perverse moral code of the modern Left, abortion is merely an affirmation of female liberation. The Governor’s position–and that of his constituents–is not legally incoherent. Moreover, abortion activists can merely cross state lines and visit the University of Oregon, whose opportunistic president, Mike Schill, former Dean of UChicago Law, will welcome your intentions with open arms (or open speculum).
By this logic, all speech advocating abortion rights is incitement to murder and therefore all pro-choice people must be rounded up and put in prison (and, of course, banned from colleges). As for the “love it or leave it” approach to violations of the First Amendment, I would prefer to have universities with academic freedom rather than being forced to move whenever the state legislature decides to ban your ideas. This is a suggestion for horrific levels of repression.
John, I appreciate your perspective and it is indeed a thorny issue; I don’t believe however that state-level policy, at the campus level especially would ipso facto lead to a “round up” and prison. That’s a bit of a stretch. The thing I like about ND’s position (or any other state with a different policy) is that it stems from a states right doctrine, or a “new Federalism” philosophy. The states have their own Constitution, legislature and laws. ND is asserting its sovereignty. One is free to enjoy any number of states with different policy. This is otherwise the general danger of H.R.1 that seeks to apply a single general legal domain over all the states in many key dimensions. This, as you know, is not how the U.S. Constitution was crafted. Moreover, Roe v. Wade is probably the worst technically reasoned SC decision on record, whether you are for or against abortion rights, but that is another argument.