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Frequently Asked Questions about the Dobbs vs. Jackson Women’s Health Organization Decision

Updated: 09/28/2022

For specific advise on individual questions, please contact your Student Health Center (for students) or your HumanResources representative (for employees).

I. Legal Questions

1. Is abortion illegal in Wisconsin?

Wisconsin Stat. 940.04(1) states that abortion is only lawful in Wisconsin to save the life of the mother. In all other cases, it is a felony for a person “other than the mother” to perform an abortion. This means that a patient who seeks or undergoes an abortion may not be charged. This law is currently being challenged in court but has not yet been held to be unenforceable.

2. Can Wisconsin patients access abortion services?

Abortion remains legal in Illinois and Minnesota (and other states) and patients can legally travel out of state to obtain an abortion. Patients should consult with their insurance provider, if applicable, to determine whether out-of-state services are covered by their insurance. Please see UW-Madison’s University Health Center Pregnancy Resources page for up-to-date information on a variety of resources – https://www.uhs.wisc.edu/gynecology/pregnancy-resources/.

3. Are campus health centers legally permitted to perform medical procedures or provide other medical treatment (e.g., prescribe medication) to treat women who’ve had a miscarraige?

Yes. To the extent campus health centers provide such services, they may legally continue to do so and/or may continue to refer patients to other providers if the necessary services are outside their service scope.

4. What protections does Title IX offer for those seeking abortion services?

Title IX prohibits discrimination in education on the basis of sex.  This means that campus health centers cannot decline to provide healthcare to pregnant students solely because they are pregnant.  However, student health centers may, consistent with Title IX, limit the scope or types of the health care services it offers.  For example, a campus health center could opt not to offer any pregnancy-related healthcare services, and instead refer students to other providers for pregnancy-related care.  The same is true for abortion services. Because a campus health center may, consistent with Title IX, opt not to provide certain healthcare services, including abortion services, Title IX does not ultimately affect a student’s ability to obtain abortion services through a campus health center nor does it affect a student’s ability to access abortion from another health care provider.

5. The recently proposed Title IX regulations require more specific support for pregnant students. How might that impact our work?

We do not yet know how the proposed federal regulations might affect the provision of campus services to pregnant students. The regulations are still in the comment phase and are not yet final.

 

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II. Campus Health Center/Student Care Questions

Employees outside of campus health centers should refer students with pregnancy and abortion-related questions to the campus health centers and not attempt to answer them on their own. Like all healthcare-related questions, employees who do not work in campus health centers are not qualified to provide such information or advice to students, nor is doing so part of their job duties. Thus, providing medical information or advice, including about abortion and pregnancy services, could remove employees from the scope of employment such that they would not be eligible for legal representation. They may also not be indemnified if damages are awarded in a lawsuit.

6. What can campus health center employees say (or not say) to students when counseling about pregnancy options?

There is no change based on Dobbs in what campus health centers can say to students about their healthcare options, except that students seeking non-therapeutic[1] abortions should only be referred to states where such abortions are legal.

[1] A therapeutic abortion is performed by a physician and necessary to save the life of the mother.  See Wis. Stat. §940.04.

7. Is identifying abortion as an option by campus health center employees considered “aiding and abetting” under Wisconsin law?

No. Referring students in Wisconsin to states where non-therapeutic abortion remains legal is not aiding and abetting under Wisconsin law because the act of traveling out of state to obtain an abortion is not illegal.

8. If a student comes to the campus health center with complications after an abortion, are health center staff obligated to report this to any agency or person?

No. Campus health centers are under no obligation to do so, and are, in fact, precluded by applicable privacy laws from reporting or otherwise disclosing to anyone that any patient had an abortion or expressed the intent to have an abortion. The laws regarding confidentiality remain unchanged following the Dobbs decision and medical providers are duty bound to protect patient privacy.

9. Are records about a student maintained by a campus health center regarding a pregnancy-related condition, specifically abortion, medical records protected by law?

Yes. Student records maintained by a campus health center are covered by the Federal Educational Rights and Privacy Act (FERPA), not the Health Insurance Portability and Accountability Act (HIPAA). All student health records are also covered by state health care privacy laws (e.g., Wis. Stat. §146.82 and §51.30).  Records of non-students maintained by a campus health center would be covered by HIPAA, not FERPA, in addition to the state health care privacy laws identified above.

The right to privacy of education records under FERPA and to medical privacy under Wisconsin law and HIPAA have not changed following the Dobbs decision. In the event of a lawsuit, criminal charge, or a criminal investigation, only a court order could compel production of those records.

10. Are medication abortions legal in Wisconsin?

As of June 24, 2022, it is only legal to provide abortions in Wisconsin, including medication abortions, to save the life of the mother.

11. Do campus health centers offer medication abortions?

Campus health centers have never offered medication abortions, and that practice will remain the same.

12. How are contraceptive options like Plan B, IUDs, etc. impacted?

These options are not affected by the Dobbs decision and are still legal. There may, however, be other reasons, such as cost and medical complexity, that campus health centers do not provide access to all contraceptive options.

III. Human Resources and Other Related Questions

13. Can employees who work outside of the campus health center provide students with information about pregnancy- and abortion- related organizations (such as Planned Parenthood)?

Please review the introduction to Section II.  As noted above, employees outside of campus health centers should refer students with any health issue, including pregnancy and abortion-related questions, to the campus health centers and not attempt to answer them on their own.

14. What issues could arise for a non-campus health center employee if a student asks for assistance from or asks questions of the employee related to pregnancy or abortion services?

See Question 13 and the Introduction to Section II.

15. Can employees speak out against or in favor of the Dobbs decision?

The general guidance on employee statements and advocacy regarding any political issue applies to Dobbs. Only the chancellor has the authority to make statements on behalf of the institution, except where the institution has granted authority to another employee to communicate on behalf of the institution. Any subunit message needs to be consistent with the institutional message and is expected to be issued in consultation with university communications.

If employees or groups of employees in certain subunits are experts in related fields and are providing input or comment on an issue as an expert, but not on behalf of the university at the direction of the Chancellor, messages and statements should refrain from taking a position or appearing to represent the position of the university or their department. Rather, these comments should be presented as academic review/analysis for input or consideration.

Employees as private citizens are free to engage in these activities on their own time and with their own resources.

16. What external organizations can employees in the scope of their employment still partner, engage and work with related to abortion and pregnancy services?

So long as the existing agreements have not been affected by changes in the law, there should be no change. For specific questions, please contact the Office of General Counsel or your institution’s Office of Legal Affairs.

17. Will the UW system support their employees’ needs for abortion services (i.e., funding and leave to travel)?

Employees have access to leave benefits (sick, vacation, personal holiday) that can be used for medical purposes. The UW System and its institutions do not have a separate category of funding or leave benefits for reproductive health care, including abortion. Employees should check directly with their health insurance provider regarding any changes in coverage.

18. What reproductive healthcare statements/resources can instructors share in their syllabi or in class?

Instructors are not required to include healthcare statements, about abortion services or otherwise, or resources in their classes or syllabi, nor are such statements generally considered appropriate or relevant content for syllabi or class discussion (except as noted in Question 19). Students are regularly provided information from the institution about the availability of healthcare on campus and should be referred to campus health centers if questions arise in class about pregnancy or abortion services.

19. What information can instructors share in the classroom about reproductive healthcare, which may be relevant to a variety of disciplines?

Instructors may continue to share information about reproductive health care, including abortion, that is relevant to course content, is part of course material, and is based on facts or supported by research within the field. Instructors should refrain from engaging in direct advocacy or promotion of specific political or advocacy positions in the classroom.

20. What information/resources can instructors or staff share about reproductive healthcare during advising sessions or office hours?

See Question 13 and the Introduction to Section II.

21. Can faculty or staff personally provide transportation, funding, pregnancy tests, Plan B, etc. to students? What are the reprecussions if they do?

See Question 13 and the Introduction to Section II. Also, providing personal assistance, such as funding and transportation, directly to students for health care, including abortion services, is outside an employee’s job duties/scope of employment and may subject the employee to personal liability, discrimination complaints, or other allegations.

Employees should also always take care to observe the boundaries and power differentials between themselves and students.  While the university does not tell employees what to do on their own time, overly involving oneself into a student’s personal life may lead to problems, such as perceived favoritism and sexual harassment allegations (e.g., my professor pressured me into getting an abortion and even drove me to the clinic and paid for it).  Campuses should not be seen as encouraging employees to have such personal relationships with students on this or any matter.

Additionally, most campuses now have policies that require employees to report personal/sexual relationships with students (consistent with Regent Policy 14-8, Consensual Relationships.

Employees should take care to heed these policies and ask specific questions if they are unsure about their obligations.

22. When are instructors obligated to give syllabi and other course information when outside requests are made? Do outside individuals/groups need to go through official channels or is an instructor permitted or required to respond to such outside requests directly?

External requests (e.g., public records requests, subpoenas, other governmental orders) for syllabi and other course materials should be forwarded to your campus public records custodian.

Course syllabi are regularly released as part of the public records process or in response to legal process without restriction. Other course materials need closer review to assess whether any materials need to be withheld based on intellectual property protections or other reasons.

23. What steps should instructors take if students challenge the validity of course content or assignments that relate to abortion?

Students are permitted to express opinions germane to the subject matter of a course, including conflicting viewpoints and/or opinions, and to challenge course material, but they do not have a right to change course material or cease instruction of specific material for the particular class. Instructors are empowered to guide classroom discussion and set reasonable limits on the classroom time made available to students for the expression of their opinions. Instructors are responsible for balancing students’ right to expression with reasonable limits on discussion in classrooms (in-person and online) and other learning environments. Students may not, however, disrupt instruction. Potential types of disruption and/or policy violations include but are not limited to unauthorized recording, unauthorized attendance (not enrolled in the class), interrupting instruction with protest or other behavior that interferes with instruction.

Instructors who are concerned about potential disruption in their classroom are advised to plan in advance by engaging instructional leaders, departmental/ building support staff, their dean of students, and/or other university employees as needed to discuss best practices, assess risk, and develop a response plan.

24. Did the Dobbs decision impact my UW System employer-sponsored health insurance coverage?

 

Employees should confirm with their health insurance what coverage is available.  UW-System’s health plans through the Wisconsin Department of Employee Trust Funds may provide coverage for abortion services but only to the extent permitted by existing state law.

25. Does my UW System employer-sponsored health insurance coverage provide out of state coverage for abortion services?

Health insurance coverage is a uniform coverage for all plans and any additional restrictions in Wisconsin would not preclude a plan with out-of-state or out-of-network coverage to cover abortion services, to the extent that they are within the limitations already expressed in state law.

IV. General Questions

26. Many campuses have programs available for students to ask for monies if they have unexpected financial or medical emergencies. Can these funds be used for assistance related to abortion-related costs?

This will depend upon any specific donor or fund restrictions as well as applicable state or federal laws. For specific questions, please contact the Office of General Counsel or your institution’s Office of Legal Affairs.

27. To what extent are the opposing viewpoints underlying Dobbs and the abortion debate protected or balanced by the university and the UW System?

Public higher education should provide space for all people to grow as human beings, acquire knowledge, search for truth, and have the freedom to express their values.  We must provide a place for civil discourse about issues that impact the lives of the people we serve.

There are many students and employees on our campuses that oppose the decision by the US Supreme Court in Dobbs.  There are also many that will support it.  Individuals with opposing viewpoints have the right to express their views.  All of our campuses hold diversity of thought as a core value.  This means recognizing, honoring and respecting the individuality of thoughts, ideas, beliefs and perspectives.  Listening to and learning from those diverse voices makes us stronger and moves us forward and closer to our enduring commitment to search for the truth. All of our campuses are committed to freedom of expression and academic freedom, as reflected in Regent Policy 4-21, Commitment to Academic Freedom and Freedom of Expression.

As always, campuses will provide support to those who need it in difficult times and continue to empower all through education. We will continue to do so in a way that provides space for all viewpoints.