US universities test limits of abortion bans

Amid a still-evolving patchwork of laws and interpretations after Supreme Court ruling, campuses are taking risks and pushing boundaries

February 9, 2023
Abortion rights and anti-abortion rights demonstrators outside the Supreme Court to illustrate US universities test limits of abortion bans
Source: Getty

US universities are cautiously pushing back against new abortion-related restrictions, testing their political and legal limits after last year’s Supreme Court ruling while bracing for even more upheavals this year.

Last summer the nation’s top court voted 6-3 to overturn its 1973 legalisation on abortion rights, creating a cross-country patchwork in which about 13 states have already implemented new prohibitions on ending pregnancies and a similar number have them in place pending additional legal rulings.

A key area of conflict for many states and their public universities is the legality of pharmaceutical interventions, which more easily evade governmental enforcement and already account for most abortions in the US.

Potential battlegrounds include the University of Kentucky, which opened a new pharmacy on its Lexington campus just a few months after the Supreme Court decision and began offering students the medication known as Plan B, which stops a pregnancy within a few days of intercourse.

Kentucky is a state where abortion is outlawed, and its flagship university is basing its action on the common medical understanding that Plan B is a contraceptive, in that it prevents the fertilisation of the egg and its implantation in the uterus, rather than a drug that directly causes an abortion.

“We will continue to ensure compliance with federal and state laws in this issue,” a University of Kentucky spokesman said, “while also ensuring we continue our commitment to providing the best possible care for all our patients.”

Medical experts do agree that Plan B isn’t abortion, but already some US politicians opposed to abortion rights are trying to get it treated as such, said Rachel Rebouché, dean of law at Temple University. “It’s certainly a subject that’s going to come up more and more, as abortion is banned, because the stakes are much higher,” Professor Rebouché said.

Because of that, decisions by institutions such as Kentucky – to directly or indirectly help students get abortion-related care – are not coming easily, said Mary Ziegler, a professor of law at the University of California, Davis. “There are universities that have just decided that their students’ welfare is more important than the risk they’re undertaking,” Professor Ziegler said. “That’s admirable, but risky.”

Another example is the University of Idaho, which responded to a statewide ban on abortion by writing to staff urging against any on-campus discussions of abortion or birth control, and warning them of potential job loss and criminal prosecution. The university did, however, write again afterwards, retracting the guidance and blaming it on an atmosphere of “confusion and emotion” following the court decision.

Some colleges and universities in parts of the US where abortion remains legal also have been taking steps that experts credit with helping both their own students and those beyond their state borders. They include Boston University and George Washington University, which have installed vending machines selling low-cost versions of the Plan B medication.

And in California, Professor Ziegler said that her state university system has taken a strategic approach to helping its students trying to arrange abortion-related services or medications for people outside the state, as well as helping its own students who come from locations with restrictive abortion laws. Universities have been offering guidance around posting information on social media that could later cause legal problems.

Given the value of secrecy, Professor Ziegler said, it was hard to be sure exactly how actively many US universities were helping their campus communities cope with the new generation of abortion-related restrictions, and in what ways. “Some of that has gone underground, basically,” she said.

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