Abortion Derangement Syndrome, Missouri Edition

Flickr/Creative Commons—Nicola

Flickr/Creative Commons—Nicola

By Gregory M. Lipper

Although the biggest abortion-related news last week came from the U.S. Supreme Court, a Missouri state senator (turned Attorney General candidate) took the prize for most bizarre.

Senator Kurt Schaefer—chairman of the Missouri Senate’s interim “Committee on the Sanctity of Life”—wrote a stern letter to the University of Missouri; he suggested that state law prohibited a Ph.D student from researching the effects of Missouri’s mandatory 72-hour waiting period for women who want to have an abortion. The law he cited provides, “It shall be unlawful for any public funds to be expended for the purpose of performing or assisting an abortion, not necessary to save the life of the mother, or for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.”

This farfetched attempt to censor academic research on the effects of government policy raises a pair of legal issues (and one psychological observation…).

First, Senator Schaefer’s interpretation of the statute is, to put it mildly, a stretch. The student isn’t going to be “performing or assisting an abortion”; she’s going to be studying abortion—more precisely, the 72 hours between when a woman seeks an abortion and is allowed to have an abortion.

In insisting otherwise, the senator points to the consent form that the student will be providing to participants in the study. That form says, “The purpose of this study is to better understand why a significant number of women sign the 72-hour consent form to have an abortion, but then never return to the clinic to have the abortion procedure.”

Huh? The legislator doesn’t even know what the results of that research will show. It’s possible that the study will show that the waiting period is imposing needless obstacles to women who want to have an abortion but who are prevented from doing so by the resulting cost and headaches produced by the waiting period. It’s also possible that the study will show something else. Perhaps those findings will undermine the rationale for the Missouri waiting period, but that’s a far cry from assisting in an abortion.

The form also states, “The information that you provide may help Planned Parenthood … improve its services to better meet the needs of women seeking abortions.” Again, it is possible that the study’s results will provide insight to Planned Parenthood—or to other medical professionals who review it. But it also might prove inconclusive, or show that people don’t return to the clinic for reasons outside of Planned Parenthood’s control, or even help legislators tailor their waiting periods to make it even harder for Missouri women to have an abortion.

Even if the findings of that research eventually enabled Planned Parenthood to improve the way it handles the 72-hour waiting period, that would no more “assist in an abortion” than would a medical student’s research that produces improvements in surgical technique that is one day used by an abortion doctor. There’s a difference between academic research, which might generate information that affects public health or health policy, and actual assistance with an actual medical procedure.

What about “encouraging or counseling a woman to have an abortion”? That argument is even more farfetched. Even if the student’s research were to show that the 72-hour waiting period creates obstacles for Missouri women seeking abortions, that is not the same as counseling someone about an abortion decision. There is a difference between “I think you should have an abortion” and “my research shows that the 72-hour Missouri waiting period for abortions makes it harder for you and other women to have an abortion.” Indeed, even if the graduate student stood outside an abortion clinic and used a university-owned megaphone to shout “The Missouri waiting period harms your health by making it harder for you to have an abortion!”, that statement would not encourage or counsel anyone to have an abortion (unless you think that Missouri women would decide to have an abortion just to spite the Missouri legislators who voted for the waiting period).

Nor does the student’s research involve government funds in any meaningful sense of the word. The student is receiving no university funds, grants, or stipends to conduct the research. The university’s instituitonal review board approved the study, because it involves human subjects, but that is not the same as providing financial support to the research, let alone for the dissemination of its conclusions, even if those conclusions could somehow be thought to encourage women to have an abortion or assist in the performing of that abortion.

Second, even if the student’s research project somehow did fall within the statutory bar, application of the statute in these circumstances would raise serious First Amendment concerns. Students at public universities have the right to free speech in and out of class. Public universities may regulate the content of their curriculum, enforce nondiscrimination policies, and ensure that students in professional training situations act within professional standards. And the government may control the content and the viewpoint of its own activities. The government normally may not, however, censor private student speech or scholarship on the basis of its viewpoint, and certainly not for reasons unrelated to legitimate pedagogical concerns.

There are hard questions on the margins, especially when curricular or pedagogical concerns clash with certain forms of student expression. But the restriction here—“You, public university student, may not do that otherwise appropriate research project, because the findings of that research might cast doubt on the wisdom of a state law or provide information that might be of longterm help to providers of a lawful service.”—would likely fail even the most deferential standard of First Amendment review.

Representative Schaefer’s letter does, however, provide some useful insight into his psyche. He asserts that academic inquiry into the effect of a Missouri abortion law is equivalent to “a marketing aid for Planned Parenthood.” From his perspective, it seems that social science research = political propaganda = social science research = political propaganda. This is one of those inquiries that says more about the inquisitor than its target.

(H/t to Dr. Jen Gunter and Irin Carmon.)

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.

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