Two professors at the University of Texas at Austin are suing for the right to penalize students who miss class to obtain an abortion out of state. The professors, John Hatfield and Daniel Bonevac, are contesting the Biden administration’s efforts to shield students from retaliation when they obtain reproductive health care, a long-standing guarantee under Title IX. They also demand the freedom to discriminate against students and teaching assistants who identify as LGBTQ.
On Saturday’s bonus Slate Plus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the lawsuit, which is part of a broader, coordinated attack on both Title IX and reproductive health care. A preview of their conversation, below, has been edited for length and clarity.
To listen to the full episode of Amicus, join Slate Plus.
Dahlia Lithwick: This is an incredible story that didn’t get enough national exposure. Mark, can you tell us what’s happening here?
Mark Joseph Stern: These professors have joined a broader lawsuit that’s attacking the Biden administration’s new regulation clarifying the scope of Title IX, which bars sex discrimination in federally funded education. The Education Department has clarified that Title IX covers LGBTQ students, which follows from the Supreme Court’s decision in Bostock v. Clayton County. It tightened protections for student survivors of sexual assault. And also—this is the sticking point for Hatfield and Bonevac—it reiterates guarantees against discrimination for pregnancy-related conditions, as well as the termination of a pregnancy.
To be clear, these are not new additions: The Education Department has interpreted Title IX to protect students who terminate their pregnancies since 1975. This principle is deeply rooted in the statute and federal regulations enforcing it. And yet red states, Republicans, and anti-abortion advocates claim that Biden’s Education Department is unlawfully expanding Title IX, and they’ve filed this lawsuit seeking to block it nationwide. Dahlia, would you like guess which judge these plaintiffs shopped their case to?
I know this one—Matty K!
That’s right! They found their way to Amarillo, Texas, where they were guaranteed to draw our friend Matthew Kacsmaryk, a far-right Trump appointee and anti-abortion zealot. And Kacsmaryk is, in turn, basically guaranteed to issue a nationwide bar on everything the Biden administration is trying to do here.
Can you explain how these professors became part of this, um, creative lawsuit?
These two guys are clients of Jonathan Mitchell, who is the architect of Texas’ vigilante abortion ban, S.B. 8. Mitchell is working on this case with Stephen Miller, former Trump adviser and head of the America First Legal Foundation. They’re teaming up with Texas Attorney General Ken Paxton, who’s spending Texans’ tax dollars on this fight.
I’m a little mystified about what specific relief these professors seek. Do they want to be able to look at a woman in class and say, “You look like you left town for an abortion this week!” Like, what do they want to happen here?
I think it’s very much of a piece with Mitchell’s S.B. 8, which relied on random strangers to uncover abortions and sue anyone who “aided or abetted them.” That law encouraged people to surveil and turn in their own neighbors, friends, and families for facilitating reproductive health care. This lawsuit is a miniature version of that for the classroom. These professors seem to intend to rely on tips from other students; perhaps they can even open up a tip line to discover why a particular student missed class. They’re turning the classroom into a surveillance state. And it leads to all kinds of perverse classroom dynamics; students might try to curry favor with the professor by passing along information that somebody got an abortion. The professor can then presumably launch his own investigation to uncover the truth, which could include demanding answers from the student who has been targeted.
The UT–Austin system does not clearly allow students to travel for abortions without punishment. The accommodations policies are extremely vague on this point. So these professors are exploiting that gap in the policy. At a minimum, they want to lower the grade of any student who misses class for an abortion, even a perfectly legal one obtained out of state. I sent them questions asking for details about their intent here, but they declined to respond.
I would love for you to talk about the invocation of Comstock here, the zombie law that’s suddenly everywhere.
This is yet another experiment by Jonathan Mitchell to revive the zombie law and wield it in a maximally harmful, misogynistic, controlling way. Comstock is a statute from 1873 that was designed to censor the mail, and primarily targeted birth control and feminist literature. But it also includes hazy language about abortion. Mitchell, who’s one of Trump’s top lawyers, argues that Comstock imposes a nationwide ban, because it talks about both drugs that induce miscarriage, like mifepristone, and things that can cause abortion, including medical equipment. He claims that the transportation of any medication or equipment meant to terminate a pregnancy is a felony offense. And he wants Donald Trump to implement this theory as policy if he wins a second term.
That argument is really front and center not just in this lawsuit, but in the professors’ own declarations.
Right. Hatfield and Bonevac say they won’t even hire a teaching assistant who might obtain abortion pills because doing so is a felony and they refuse to harbor criminals. And it’s no coincidence that this case has been shopped to Matthew Kacsmaryk, who attempted to ban mifepristone nationwide last year—citing, among other things, the Comstock Act for support. The Supreme Court will probably reverse Kacsmaryk soon, but this Title IX case gives him another opportunity to talk Comstock. He can remind everyone that, in his view, this nationwide ban on both medical and procedural abortions already exists. In some ways, this is a Comstock lawsuit smuggled into an attack on Title IX.
And it’s trying to put the Comstock argument “on the wall,” right? All of Mitchell’s Comstock lawsuits are trying to breathe new life into the zombie law, making it look live and urgent. Of course, this is the same lawyer who is representing men who want to wield the legal system against estranged partners who terminate their pregnancies. It sure seems like he hates pregnant people.
Mitchell is committed to setting up an all-encompassing, almost totalitarian surveillance state where every single pregnant person is under constant watch, as are their friends and family. And any pregnancy loss subjects them and their loved ones to potential criminal penalties.
The sum effect is to silence and terrify and isolate people who need to be able to ask for help in the midst of a crisis. This entire regime of laws is designed to chill them from seeking help. It’s so unbelievably cruel, and I guess that’s the point.
There’s more, too: These professors are also seeking the right to discriminate against LGBTQ students. So this does not stop at the termination of pregnancies at all.
They are demanding a right to openly discriminate, particularly against transgender students, whom they deride as having “delusional beliefs.” Of course, the Supreme Court settled this issue in Bostock v. Clayton County, when it held that sex discrimination encompasses anti-LGBTQ discrimination. But Matthew Kacsmaryk is in open rebellion against Bostock—he refuses to recognize it as a legitimate decision, and instead cites Justice Samuel Alito’s dissent as though it’s binding law. So this will be a winning argument in his court.
I think it’s worth pausing and asking: Is this how educators are supposed to act? Are professors supposed to surveil their students, punish them for getting health care, and accuse them of having delusional beliefs on the basis of their identity? And then insist on your right to punish them for having the “wrong” beliefs or getting the “wrong” health care? I don’t understand why these guys want to be professors at all. Why would they want to engage in debate and discussion with students whom they evidently despise? And seek to weaponize the power of the state against them? I find it both baffling and disgusting.