Libraries Are Challenged by New Abortion Laws
by George H. Pike
For most of my adult life, the subject of abortion and abortion rights has been one of the most volatile social issues of the day. The Roe v. Wade decision was issued in 1973, when I was 14 years old, and the Dobbs v. Jackson Women’s Health Organization decision overruling Roe came out nearly 50 years later, on June 24, 2022. I have known women who have had an abortion, and I have known people who have been strongly opposed to abortion. But for the most part, the subject has remained outside of my professional life as a librarian, lawyer, and law instructor.
The Dobbs decision found that the U.S. Constitution does not confer a specific right to abortion. By reason of that ruling, the determination as to whether obtaining an abortion is to be considered a crime or otherwise illegal and who is subject to penalties—the patient, the abortion provider, and/or others—was returned to the states. Prior to Roe, states determined whether or not abortion was legal within their borders and who was subject to a penalty. In most cases, the person who provided the abortion was subject to the punishment.
Since the Dobbs ruling, a number of states have banned and/or criminalized abortion in most or all circumstances. Some states have used “trigger” laws that had been enacted prior to the Dobbs decision and went into effect when the decision was released. Other states have acted to restrict or ban abortions or indicated an intention to act in the upcoming legislative sessions. As of this writing, there are about 20 states where abortion remains legal under state law or under privacy rights granted by the state’s constitution.
In the most extreme cases, the language of some of the states’ anti-abortion laws creates a possibility that people who assist in the abortion procurement process can be subject to penalties. A 1925 Texas law that was renewed with the anticipation of the Dobbs decision provides that civil penalties and lawsuits can be filed against someone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion. …” These laws are raising the question of whether librarians and other information professionals who provide abortion-related information can be subject to civil or criminal liability.
In July, The Oklahoman told the story of librarians at the Oklahoma City Metropolitan Library System being advised to “steer clear of offering any advice about abortion to patrons.” This came after an internet rumor sprung up that library staff had been prohibited from using the word “abortion” or from assisting patrons in researching abortion.
While the rumor was asserted to be false, the library system did issue guidelines providing that librarians can assist patrons in finding factual information, but can’t offer opinions or advice or “actively assist anyone in breaking the laws of Oklahoma.” However, there remains a great deal of uncertainty and concern about whether sharing information about abortions could be considered “aiding and abetting” under these new laws.
LIBRARY AWARENESS PROGRAM
This is by no means the first time that librarians have been under a legal microscope for providing information or information resources to patrons. Throughout the 1960s and 1970s and into the 1980s, the FBI had a formal—albeit secret—program to recruit or induce libraries and librarians to report on potential foreign intelligence-oriented research or recruiting. This anti-communist initiative was known as the Library Awareness Program and formalized previous government efforts to determine the reading and research habits of patrons.
In response, many states passed library privacy acts. Illinois’ Library Records Confidentiality Act is a typical example, stating that “registration and circulation records of a library are confidential information.” They cannot be disclosed, unless there is a court order or—under very limited circumstances—they are given to the police in an emergency situation in which there is “imminent danger of physical harm” (and must be related to a crime).
AIDING AND ABETTING
As the Oklahoma library officials realized, these abortion restriction laws are vague as to what constitutes aiding and abetting. In general, aiding and abetting laws apply to someone who knows that someone else is going to commit a crime and does something to help that crime succeed. A potential key question in the abortion context is who is potentially committing the crime: the physician (or physician’s office) who provides the abortion, the person who obtains the abortion, or both. If the state law only would punish the abortion provider, then the person—presumably, the person who is seeking information from the library—is not committing a crime, so assisting them would not be aiding and abetting.
Some state laws provide for a civil lawsuit or civil penalties against someone who assists another in procuring an abortion. As chilling as that may be, however, it is also not a crime, so it would not be punishable as a criminal offense under abortion statutes. The biggest challenge is the variety of state laws that have been enacted and are being proposed. What might be OK in one state may not be in another.
ALA recently released a statement condemning state legislation that limits access to information on reproductive health. The statement affirms the organization’s opposition to “any effort to suppress access to information about reproductive health, including abortion” and points out that “[a]ccess to information in a library is a First Amendment-protected activity. …” It indicates that ALA is developing “guidance for libraries and library workers” in dealing with abortion research questions.
Libraries are stepping up with research guides and resources. The University of Michigan has posted its Abortion Research and Policy guide, and Robbins Library of Arlington, Massachusetts, has Reproductive Rights: A Library Guide. Both resources provide policy reports, research data, legislative updates, and other information.
Abortion and reproductive rights have been hot-button issues on the public, political, and social consciousness for more than 50 years, and the Dobbs decision and state legislative responses have only turned up the heat. Happening as it is amid the culture wars that are already impacting libraries through increased book challenges and attacks on programming choices, the abortion battle is adding another layer of difficulty to an already difficult time.