Abortion Ruling Prompts Legal Questions

The U.S. Supreme Court ended federally protected abortion rights enshrined in Roe v. Wade with its 6-to-3 ruling in Dobbs v. Jackson Women’s Health Organization last month. But for colleges, the end of such rights marked the beginning of an era of legal uncertainty.

A patchwork of state laws means that every college must navigate the new post-Roe reality differently. For colleges in states where abortion is banned, the ruling creates numerous legal questions and dramatic scenarios that could see them prosecuted for running afoul of the law.

At last week’s National Association of College and University Business Officers conference outside Denver, a panel of lawyers illuminated some of those questions.

Chief among them: Will colleges use funds to transport students to other states for abortions? What happens if a college faces a conflict between state law and accreditation standards? Will institutions face legal liability for aiding and abetting abortion access? How will law enforcement look upon providing advice or transportation for terminating a pregnancy? Will colleges provide legal counsel for students or faculty helping provide abortion access? Can colleges assist employees who want to travel from a prohibition state to another state for an abortion?

While the questions were plentiful, the answers were unclear.

“It’s going to be a bumpy ride before it’s all resolved from a legal perspective,” said Ona Alston Dosunmu, president and CEO of the National Association of College and University Attorneys, who moderated the panel at NACUBO, which also examined a broad range of other legal issues.

Though panelists were unavailable or declined to speak with Inside Higher Ed on the record, other legal observers concur that legal questions loom large for colleges.

Peter Lake, the Charles A. Dana Chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law, said that the legal profession is scrambling to catch up with the changes ushered in overnight by last month’s ruling. To take one example, Roe v. Wade was overturned shortly before testing for the bar exam began in July.

“Even lawyers getting licensed are struggling with what just happened,” Lake said.

But since laws are state-specific, college reactions are dictated by their location.

“In the states where there are strong legal rules prohibiting abortion, including potential criminal penalties, there’s a pretty distinct move away from offering or connecting services that could be legally volitive. People are, needless to say, unsure of exactly what the enforcement will look like,” Lake said. “And in the absence of a sort of track record of what states will actually do, being fairly risk averse, I think some people are moving away from service provision, and redefinitions of the services that are provided.”

By contrast, some colleges in states where abortion is legal are doubling down on reproductive rights, Lake said.

One example of a college quietly backing off on reproductive health is the University of Texas at Austin, which dropped language from its website that outlined options for pregnant students—including abortion—as reported by The Texas Tribune last week.

In some states where abortion is banned or limited, students are pushing universities to act, urging them to provide emergency contraception such as the Plan B pill. That’s the case at the University of Florida, where the Student Senate passed a resolution to provide Plan B in vending machines.

The resolution will make emergency contraception easily accessible, alongside snacks and soft drinks.

“Within the vending machines right now, you have an option to buy a mask or hand sanitizer, so the vending operation side has shown that they are nimble enough, and they will change,” said Joseph Andreoli, a graduate student at UF and co-author of the resolution on providing Plan B.

Andreoli believes that the federal and state governments have failed citizens on abortion access. And through its silence, the University of Florida has failed students in an effort to appease conservative governor Ron DeSantis, who has struck a hard line against abortion access.

“Unfortunately, this is par for the course for [the University of Florida],” Andreoli said. “I have been unhappy with their response to COVID. I’ve been unhappy with their response to the attacks on academic freedom from the governor and the Legislature. So, unfortunately, their response to Dobbs v. Jackson has been what I would expect, which is not wanting to upset the governor.”

The university has not committed to stocking Plan B in vending machines as the student resolution requested, saying in a one-sentence statement that it was reviewing the proposal.

Seeking Guidance

As colleges seek legal footing on abortion issues, education associations are trying to figure out how to provide useful advice on best practices in a new reality.

“There is a lot of uncertainty surrounding these laws and their true impact on college health providers and their students,” Rachel Mack, spokesperson for the American College Health Association, said by email. “We have designated a task force to examine the issue, which should provide some needed insight. In the meantime, we are advising our members to communicate to their students which services are and are not available, how to access those services, and how to find credible and trustworthy sources of information about their health needs.”

Other organizations—such as accrediting bodies—have to walk a fine line between mandating certain requirements and respecting state laws that prohibit abortions. The Accreditation Council for Graduate Medical Education, for example, has proposed revisions to its current standards for obstetrics and gynecology. The proposed changes—which are open to a 45-day public comment period ending on Aug. 8—aim to strike a balance that will ultimately “help ensure obstetrics and gynecology residency programs provide residents with the knowledge, skills, and abilities necessary to practice comprehensive reproductive health care in the United States without resulting in any resident, physician educator, or residency program violating the law,” according to an email from ACGME spokesperson Susan White. (This paragraph has been updated to reflect the programs that fall under ACGME accreditation.)

“The ACGME has proposed revised requirements for obstetrics and gynecology that address the need for continued access to abortion education and training as essential for physicians in this specialty while allowing provisions for residents in jurisdictions with legal restrictions,” she said.

While ACGME standards require “access to clinical experience with induced abortion” as part of the curriculum, the revisions will require programs to provide that clinical experience elsewhere “if a program is within a jurisdiction that legally restricts” such training. ACGME also states that “programs in jurisdictions where legal restrictions on induced abortions prevent satisfaction of the requirement for clinical experience in induced abortions and [where] a resident is unable to travel to another jurisdiction for such structured clinical experience, programs must provide the resident with a combination of didactic activities, including simulation, and assessment on performing a uterine evacuation (surgical and medical) and communicating pregnancy options.”

ACGME guidance notes that residents with religious or moral objections “may opt out of and must not be required to participate in education or training in or performance of induced abortions.”

Risk Assessments

If the concerns resulting from Dobbs—including the possibility of legal action prompted by aiding and abetting abortion access—seem overblown, Lake suggests that they’re not. The risks, he argues, are real. But how law enforcement will handle such matters is unknown.

“It’s in that gray space and hasn’t happened yet. But when you read the rules, and the way they could be interpreted, it’s enough of a possibility that a good lawyer would alert clients of the risks,” Lake said.

Lake adds that many of the fears colleges have now likely won’t come to pass. But colleges are right to be asking these questions and weighing their legal exposure, he said, noting that now is the time for colleges to ask questions before any legal issues arrive on their doorstep.

“Right now is the time to run all the scenarios. Then ask yourself, ‘How do I intend to manage those if they occur? What am I going to do? If this happens, then what do I do next?’” Lake said. “I think this is the time, frankly, for an audit of operations to examine all of the implications.”