Texas’s Title IX case is about a national abortion ban, not student attendance

A new case out of Texas, brought by Attorney General Ken Paxton for the state of Texas and joined by two University of Texas (UT) Austin professors, broadly challenges the U.S. Department of Education’s interpretation of Title IX — the federal law that prohibits sex discrimination in education — that is set to go into effect later this summer. 

The Department’s guidance states, in part, that Title IX protects students from discrimination based on sex, including “pregnancy or related conditions” and that the definition of “related conditions” includes abortion.

The case is generating headlines partly because the two plaintiff professors have declared (in advance) that they will not comply with the Title IX guidance. They lodge a range of complaints about using non-binary gender pronouns and “cross-dressing” teaching assistants, and, notably, students who seek abortions. 

They state that they will refuse to excuse a student’s class absence — read: they will impose grading penalties — if the absence is related to “elective” abortion. 

More specifically, they state that they will academically penalize a student who is absent because she obtained an “elective” abortion (an illegal abortion in Texas), got FDA-approved medications for a self-induced abortion or traveled to another state to obtain a safe and legal abortion.

They go on to opine (with their finance and philosophy expertise, naturally) that “elective abortion” is not “health care” or a “medical procedure.” And finally, they state that they will not hire any teaching assistants who “aid or abet” someone seeking an abortion because they refuse to employ “criminals” and “lawbreakers.” 

In short, they argue that women who seek safe abortion, or those who help them, should be denied both educational and employment opportunities.

This case is not about class attendance policies. This is about the continuation of a deliberate strategy to make sure those seeking or providing abortions do so with threats of criminal prosecution, loss of medical licenses, civil lawsuits — or now, denial of educational and employment opportunities — hanging over them.

It is about making sure family members, friends, partners — or now, teaching assistants — know that they help a pregnant person find safe abortion care at their peril.

It is about making it harder for pregnant patients, faced with draconian abortion bans in their home states — or now, the states where they attend school — to travel to states where abortion is legal. 

It is about continuing to position abortion as “not health care” or not a “medical procedure.” It is about underpinning arguments that medical decisions about abortion should be made by legislators and judges — and now, finance and philosophy professors — rather than doctors and their patients. 

Indeed, we see this precise strategy in both abortion cases currently pending before the Supreme Court: one challenging the Food and Drug Administration’s expert scientific and medical authority to approve and regulate mifepristone (medical abortion) and the other seeking to eradicate a federal mandate that abortion be provided in emergencies where abortion is the medically indicated standard of care. Texas would likewise abolish this federal protection.

It is about the misogynistic narrative that “bad” women — and now, “criminal” student “lawbreakers” — choose elective abortion and deserve punishment for that choice.

It is about pretending that life exceptions to abortion bans will protect women.  

The two Texas professors said that they would excuse absences if the abortion was necessary to preserve the student’s life or health. But that rings hollow in the face of Texas reality: Just last week, the Texas Supreme Court made clear that the narrow exception to the Texas abortion ban does not protect women whose health is in danger. 

And to be clear: These are not two individual faculty members gone rogue. Texas brought this case, added these professors as plaintiffs and submitted their declarations in federal court. The professors’ detailed and deliberate declarations echo the national anti-abortion strategy.  

As Slate reported, the professors are working with the same lawyers and anti-abortion groups that instituted the Texas abortion ban. The case was filed, not surprisingly, in the same Texas judicial district that spawned the pending Supreme Court case about mifepristone — so the plaintiffs will be in front of a federal judge sympathetic to their claims.  

And, knowing that the current Supreme Court case about mifepristone will likely be dismissed soon on procedural grounds, this case is about shoring up new claims that mifepristone should be banned nationwide under the 1873 Comstock Act.

This case is not about college professors’ student attendance policies.

Jessica Waters is an associate professor in the American University School of Public Affairs.