Photo by Graham Klingler on Unsplash
Shelbi Shultz, Associate Member, University of Cincinnati Law Review
I. Introduction
Although the seminal case granting a constitutional right to abortion access, Roe v. Wade, was decided in 1973, abortion rights in America currently rest on thin ice.[1] When Texas’s “Heartbeat Act” went into effect in September, the spotlight of national attention was shed on all the other states with similarly restrictive abortion laws on the books.[2] One such state aiming to follow Texas’s stringent example is Ohio. The Ohio House of Representatives has introduced House Bill 480, entitled the “2363 Act,” which proves to be even more suppressive than the new Texas abortion law.[3] Restrictive abortion laws create a myriad of legal issues, and while the public’s attention might not be immediately drawn to universities as a hotbed for these issues, colleges across Ohio may face serious problems in light of the new legislation.
This article will discuss the ways that the Texas Heartbeat Act and, if passed, Ohio House Bill 480, may have repercussions for universities in those states. First, this article will trace a brief history of abortion laws in America that provide context for the current climate surrounding abortion. Then, it will discuss the connection between restrictive abortion laws and universities. Ultimately, this article will argue that these new abortion laws impose unnecessarily oppressive or unconstitutional limitations on universities, which represent only a few of the many reasons why the laws should not pass constitutional muster.
II. Background
A. Abortion Rights in America
In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion prior to viability, which is when a fetus could theoretically survive outside the womb.[4] In making its decision, the Court expanded on a “right to privacy” that can be inferred in the Constitution and determined that a right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[5] Roe created a trimester framework that has since been abandoned, but the principle that all American women have an unquestionable right to abortion in some capacity has endured.[6]
Planned Parenthood v. Casey is the current controlling Supreme Court precedent on abortion.[7] Casey kept the pre-viability standard for pregnancy termination set forth in Roe but abandoned the trimester framework.[8] The Casey plurality opinion held that the government cannot create an “undue burden” on a woman’s access to abortion before the fetus is viable.[9] The joint plurality opinion stated that, “undue burden is shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[10] After viability, the state may prevent a woman from terminating her pregnancy except when abortion is necessary to protect the health of the woman.[11]
Almost 30 years after the Casey decision, abortion rights in some states have effectively reversed back to a pre-Roe legal framework. On September 1, 2021, Senate Bill 8, a Texas law commonly known as “The Heartbeat Act,” went into effect.[12] The law prohibits medical providers from assisting in terminating a pregnancy after a “fetal heartbeat” can be detected—typically about six weeks after pregnancy begins.[13] Since many people are unaware they are pregnant at the six week mark, the law effectively bans all abortions in Texas.[14] If an abortion is performed after that period, private citizens can bring suit against the provider and anyone assisting in the abortion for at least $10,000 for each abortion, plus attorney’s fees.[15]
The passage of the Heartbeat Act in Texas exhibited the precarious position of abortion rights in the United States, and similar laws have cropped up across the country.[16] Ohio lawmakers introduced House Bill 480 on November 2, 2021, titled the “2363 Act” for the number of abortions that allegedly occur each day in America.[17] If passed, the Ohio law would ban all abortions, making it more restrictive than the Texas law that gives the short six-week grace period to legally obtain an abortion.[18]
The Heartbeat Act and the 2363 Act were purposefully crafted to technically avoid violating Casey because the suits to enforce these laws can only be brought by private citizens against private citizens.[19] Thus, the state is not actively constraining abortion access.[20] Also, instead of suing those who receive abortions, the laws only target abortion providers in the state.[21] The Supreme Court is slated to evaluate the Heartbeat Act by the end of 2021, and Justice Kavanaugh has already expressed concern regarding the legal validity of the Act, stating: “There’s a loophole that’s been exploited here or used here.”[22]
III. Discussion
Restricting abortion access creates widespread effects in various aspects of American life, but college campuses will likely face a disproportionate impact. Sarah Wheat, the spokesperson for Planned Parenthood of Greater Texas, sums up the Heartbeat Act’s impact on students in Texas: “Whether you’re an out-of-state student who just lost the constitutional right to abortion you would have been afforded at home, or a native Texan forced to leave the state for healthcare, college students face an incredible burden under SB 8.”[23] If passed, the 2363 Act has the potential to create a similar, if not more extreme, problem for Ohio students.[24] Besides the direct impact of constraining access to abortion, the laws may also widely affect university functioning, specifically in the areas of academic freedom, revenues, and Title IX.
One concern that has surrounded the abortion bans in the university context applies to academic freedom, specifically for educators. Both the Heartbeat Act and the 2363 Act would allow any person to bring a civil action against a citizen that “knowingly engages in conduct that aids or abets the performance or inducement if an abortion…”[25] With such broad language, some educators are concerned that lawsuits may be brought against them based on what they teach in the classroom or write about in an academic context.
In response to the Heartbeat Act, Dr. Andrew Joseph Pegoda of University of Houston shared academics’ concerns regarding the Heartbeat Act’s breadth, stating that private citizens could “point to a college student who has an abortion and argue that they were ‘encouraged’ during a routine lecture,” or contend that “during a discussion, another student might share a personal experience that ‘encourages’ another student to have an abortion.”[26] Abortion often serves as an appropriate topic in classes like biology, history, political science, sociology, and women’s and gender studies to name a few.[27] Thus, in order to avoid the possibility of being accused of encouraging a student’s abortion, professors may choose to opt out of certain topics of study in order to protect themselves or the university from liability.
Another concern lies in whether medical schools would be allowed to teach about abortion. According to a 2020 study, 10% of medical schools do not provide any formal education on administering abortions.[28] With restrictive abortion bans implemented in some states, this number is likely to rise unless the laws are modified. If a medical student is trained in administering abortions at a university and then goes on to administer abortions as a medical professional, would the medical school be liable for facilitating abortions in that state? To avoid this question of liability, schools in states with stringent abortion laws would likely cease providing instruction on abortion altogether.
With the potential effect of chilling academic discussion and repressing curriculum in fear of legal repercussions, the Texas and Ohio abortion laws are in tension with the First Amendment. The Supreme Court has clearly conveyed the value of academic freedom in university classrooms as central to First Amendment freedom of expression.[29] In Keyishian v. Board of Regents, the Court held:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to us and not merely to teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.[30]
Fearing the potential of being implicated in a lawsuit, university professors in Texas, Ohio, and other states with increasingly strict abortion laws may avoid the topic of abortion altogether—even when relevant to academic discussion.[31] The Heartbeat Act and the 2363 Act, as they are currently written, inevitably “cast a pall of orthodoxy” over university classrooms.
In addition to the freedom of speech issues, restrictive abortion laws could also have unforeseen monetary implications for universities and states in general. High school students deciding where they will attend college may choose not to attend universities in states like Texas and Ohio with restrictive abortion laws due to fear of not having access to an abortion.[32] Many college students do not have the resources to travel across state lines to receive an abortion if necessary, so that one concern may rule out the schools in that state altogether.[33] Regarding academic freedom discussed previously, students who wish to study medicine or major in women’s and gender studies, for example, may choose to attend a school where the curriculum will not be obstructed. Thus, there is the potential that these laws may shortsightedly cut off revenues through student enrollment to universities in the state.
Title IX of the Education Amendments of 1972 (“Title IX”) also stands in direct tension with the restrictive abortion laws. Title IX prohibits discrimination on the basis of sex in higher education institutions.[34] A law that severely limits women’s right to an abortion would inherently infringe on their right to an education, and data supports the assertion that having a child while attending college poses a huge hurdle to finishing college.[35] This disparity shows why national access to abortion is necessary in remaining compliant with Title IX.
Since Title IX and Roe came to fruition almost simultaneously, there has never before been a need to evaluate the relationship between abortion and education because they were both protected by law.[36] Now that abortion access is severely restricted in some states, the courts will have to decide what is more valued—a woman’s access to education or the state’s ability to force an unwanted pregnancy.
IV. Conclusion
The Heartbeat Act and, potentially, the 2363 Act, pose serious, immediate obstacles to people seeking an abortion. Those laws would also present unforeseen consequences for higher education institutions and their students in the states where repressive abortion laws are enacted—particularly in the realms of academic freedom, revenues, and Title IX. This leads one to ask if any of these issues take precedent over a state’s ability to enact restrictive abortion laws. The Supreme Court will weigh in on the Heartbeat Act’s legality in the near future, but in the meantime, Texas women’s constitutional freedoms are being infringed, and Ohioans are left wondering if they will soon be next.
[1] Roe v. Wade, 410 U.S. 113 (1973).
[2] Shefali Luthra, 106 restrictions on abortions have become law this year. It’s a record., The 19th News: Abortion (Oct. 5, 2021, 6:00 AM), https://19thnews.org/2021/10/106-abortion-restrictive-laws-have-passed-this-year-its-a-record/, (The Guttmacher Institute has tallied over 100 abortion restrictions that have passed in the past year. This represents the most abortion restrictions that have passed since 1973—when Roe was decided.).
[3] H. B. 480 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
[4] Erwin Chemerinsky, Constitutional Law: Principles and Policies 853 (Wolters Kluwer 5th ed. 2015).
[5] Roe, 410 U.S.at 153.
[6] Planned Parenthood v. Casey, 505 U.S. 833, 873 (1992).
[7] Id.
[8] Id.
[9] Chemerinsky, supra note 4 at 860.
[10] Casey, 505 U.S. at 876-877.
[11] Id. at 861.
[12] Katie Keith & Timothy S. Jost, Texas Finds a Way to Block Most Abortions, For Now, The Commonwealth Fund: Advancing Health Equity (Sept. 8, 2021), https://www.commonwealthfund.org/blog/2021/texas-finds-way-block-most-abortions-now.
[13] Id.; Selena Simons-Duffin, The Texas Abortion Ban Hinges On ‘Fetal Heartbeat.’ Doctors Call That Misleading, NPR: Shots- Health News From NPR (updated Sept. 3, 2021), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion, (It is important to note that the term “fetal heartbeat” is not widely recognized by the medical community and may be regarded as a loaded term. Though, since the term is used in the legislation, it will be used in this article for clarity.).
[14] Amy M. Branum & Katherine A. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21 Maternal & Child Health J. 715 (2017) (asserting that most women generally do not know they are pregnant until the 5.5-week mark).
[15] S. B. 8 § 171.208(b)(2), 87th Leg., (Tex. 2021).
[16] Luthra, supra note 2.
[17] H. B. 480.
[18] Id.
[19] Keith & Jost, supra note 12.
[20] Id.
[21] Id.
[22] Josh Gerstein & Alice Miranda Olstein, Kavanaugh, Barrett air skepticism of Texas abortion law, Politico: Legal (Nov. 1, 2021), https://www.politico.com/news/2021/11/01/justices-texas-abortion-ban-518230.
[23] Maria Carrasco, Texas Abortion Ban Poses New Challenges for Students, Inside Higher Ed (Oct. 15, 2021), https://www.insidehighered.com/news/2021/10/15/students-protest-restrictive-texas-abortion-law?utm_source=Inside+Higher+Ed&utm_campaign=f4d7870082DNU_2021_COPY_02&utm_medium=email&m_term=0_1fcbc04421-f4d7870082-236895222&mc_cid=f4d7870082&mc_eid=5f1e90f836.
[24] H. B. 480.
[25] S. B. 8 § 171.208(a)(2); Id.
[26] Andrew Joseph Pegoda, Texas Abortion Law Threatens Academic Freedom, Inside Higher Ed (Oct. 8, 2021), https://www.insidehighered.com/views/2021/10/08/threats-texass-abortion-law-educators-opinion?utm_source=Inside+Higher+Ed&utm_campaign=22456c0404WNU_COPY_01&utm_medium=email&utm_term=0_1fcbc04421-22456c0404-236895222&mc_cid=22456c0404&mc_eid=5f1e90f836.
[27] Id.
[28] Julie Heger, Joeli Roth, & Sonjiya Kenya, What Are We Learning? An Update on Abortion Education in Medical Schools, Obstetrics & Gynecology (May 2020), https://journals.lww.com/greenjournal/Abstract/2020/05001 /What_Are_We_Learning__An_Update_on_Abortion.271.aspx.
[29] Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).
[30] Id.
[31] James MacPherson, AG to colleges: Obey law barring ties to abortion providers, AP News (Nov. 3, 2021), https://apnews.com/article/business-education-north-dakota-higher-education-wayne-stenehjem-26db0f34afd00d0e9f517ab25801b0ac, (Recently, in North Dakota, a law was passed to bar universities from affiliating with abortion providers or risk a 2.5% budget cut. This put a North Dakota State University sex education class that partnered with Planned Parenthood in violation of the law. University officials stated that the principle of academic freedom was more important than the loss of funding.).
[32] Genevieve Carlton, Why Abortion Is an Important Issue for Students, Best Colleges (Oct. 5, 2021), https://www.bestcolleges.com/news/analysis/2021/10/05/why-abortion-is-important-student-issue/.
[33] Carrasco, supra note 23.
[34] 20 U.S.C.S. § 1681.
[35] Deborah L. Brake & Joanna L. Grossman, Reproducing Inequality Under Title IX, Harvard J. of L. & Gender, 172, note 4 (listing statistics from studies that bolster this assertion: “61 percent of community college students who have children after enrolling do not complete finish their education, a figure that is 65 percent higher than for women who do not have children while in college;” Nat’l Campaign to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy Among College Students, 1, 1 [2015]; “By age 22, only around 50 percent of teen mothers have received a high school diploma and only 30 percent have earned a General Education Development (GED) certificate, whereas 90 percent of women who did not give birth during adolescence receive a high school diploma. Only about 10 percent of teen mothers complete a two- or four-year college program” Pregnancy Prevention: Adverse Effects, YOUTH.Gov, https://youth.gov/youth-topics/pregnancy-prevention/adverse-effects-teenpregnancy [https://perma.cc/VMA8-HMN6]).
[36] 20 U.S.C.S. § 1681; Roe, 410 U.S., (Title IX was enacted in 1972, and Roe was decided in 1973.).
