The Biden administration’s attempt to advance protections against sex-based discrimination and harassment on college campuses through a Title IX proposal came just 24 hours before the Supreme Court struck down the constitutional right to abortion.
In the eight states that have so far banned abortions, and the 22 states where bans are expected soon, pregnancy rates among college students are expected to rise. Many colleges will now have to grapple with new questions of how Title IX of the Education Amendments of 1972 applies to students seeking academic accommodations to access abortion, especially for college students who will now have to cross state borders to legally terminate a pregnancy.
According to a 2013 study, 20 percent of individuals said that they got an abortion because having a child would interfere with their future opportunities, including education. College-aged individuals, of whom 92 percent are under the age of 24, are among the most likely demographic to seek abortion care.
Title IX—the federal law that prohibits sex-based discrimination at all federally funded colleges—requires colleges to provide academic accommodations for medical needs related to pregnancy, abortion and miscarriages. These protections were created so that pregnant students can continue their education without significant disruption.
Recently, additional protections for pregnant students were proposed under the Biden administration’s new Title IX rules.
How the New Title IX Proposal Expands Protections for Pregnant Students
On Thursday, the Education Department released a new proposal for Title IX, which further clarifies gray areas in the existing regulations around discrimination against pregnancy and “pregnancy-related symptoms.” Since pregnant students are more likely to drop out of college, these clarifications will likely play an important role in helping an increased number of pregnant students continue their education.
Protections for discrimination against pregnant students have been codified into law since 1975, which states that sex-based discrimination based on “pregnancy, childbirth, termination of pregnancy, or recovery therefrom” is prohibited.
“Title IX regulations regarding pregnancy and related conditions have remained static for nearly a half century,” say the proposed regulations. “In that time, much has been learned about what appropriate standards are necessary to afford students and employees the ability to learn and work while pregnant or experiencing pregnancy-related conditions.”
The new regulations clarify the types of accommodations that students can access due to pregnancy, miscarriage or abortion and provide a clear definition of what falls under “pregnancy-related symptoms” that students can use to request a medically excused absence from class. Advocates say that these clarifications are important because pregnant students and those with children are often discouraged from and discriminated against when trying to continue their education.
“We see student parents leave all the time because they’re told they can’t stay, that they need to withdraw, that accommodations won’t be made. They are told that they don’t belong,” said Jessica Lee, a lawyer and the director of the Pregnant Scholar, a group that educates students who are parents or pregnant in college about their legal protections.
Under the newly proposed regulations, a licensed health-care provider can now sign off on medical leave; that includes midwives, registered nurses and other nonphysicians, whereas under the current regulations students need a sign-off from a physician. Medical leave can be requested for anything from needing to miss class for a medical appointment, for experiencing pregnancy-related symptoms such as morning sickness, or to get or recover from an abortion.
“There is going to be some responsibility on schools to provide accommodations and no hindrance to access for pregnant people who need to seek abortions,” said Alyssa-Rae McGinn, vice president of investigations at Dan Schorr LLC, a company that advises colleges on Title IX. “Needing an abortion very clearly falls under pregnancy and pregnancy-related conditions.”
Making Sense of the New Legal Standards on Abortion
As access to abortion becomes increasingly limited across the nation, many college Title IX offices will have to address new questions of what services they are able to provide, including the possible need to travel out of state for abortion care.
Although the Biden administration’s Title IX proposal would codify explicit protections and entitlements for pregnant students, accommodations regarding abortion, which require a medical note from a doctor, will largely be left to colleges to implement in their own Title IX policies.
In order to ensure students are aware of what protections and accommodations are available to them in the case of pregnancy, college health service staff are going to need explicit communication on swiftly changing state laws regarding abortion care and contraceptive services to ensure that they are not breaking the law, Lee said. This is especially important as some states move to pass legislation restricting access to emergency contraceptive services or out-of-state abortion referrals, which are services regularly provided by many university health service centers.
“Folks who aren’t lawyers aren’t going to know where the line is between saying, ‘here’s what’s available to you’ and what is actually legal, so people aren’t just saying nothing out of fear,” said Lee. “All of that is a very nuanced legal standard that health-care providers typically just aren’t up to speed on, and they’re really going to need to rely on general counsel and Title IX compliance officers to let them know where the lines are.”
According to McGinn, this could mean colleges providing students with the necessary accommodations to continue their education in the face of needing to travel out of state for an abortion and to recover from an abortion. Title IX does not require that students are given time off to travel to seek an abortion, however.
“Title IX coordinators understand that the protections of Title IX are a floor,” said Brett Sokolow, president of the Association of Title IX Administrators. “All the things that the proposed [regulations] say that schools need to do to protect pregnant individuals—those are things that a school could exceed if it chooses to do so.”
As abortion becomes increasingly illegal across the nation, it could become harder for students to gain the academic accommodations—time off—needed to get an abortion in some states. Since Title IX prevents students from being discriminated on based on their choice to get an abortion, it will likely play an important role in ensuring students do not face criticism for their choice to terminate a pregnancy.
“As it gets harder to get an abortion, it gets harder to fly under the radar. Whereas someone in a state with easy access may only miss a class or two, someone in a state with more challenging access might have to miss a significant amount of time from school, and it might be more disruptive to their education or to their work in a way that shines a spotlight on them,” said Lee. “All of this is going to get a lot more public right at a time when people are feeling less safe being public about it.”
Bayliss Fiddman, the director of educational equity and senior counsel at the National Women’s Law Center, said that for students to feel comfortable disclosing that they are pregnant and seeking an abortion, they must feel as though this information is protected.
“Right now it is really important that you actually make the university a safe space, so letting them know that whatever they seek on campus, whoever they tell on campus that they received an abortion or that they’re pregnant and are looking for one, that this is a safe place and they will not be reported to the criminal legal system,” said Fiddman.
In an example of what some colleges are doing, Vanderbilt University in Tennessee, which has a ban on abortion that will go into effect 30 days after the Supreme Court ruling, has established a task force that will consider how the abortion ban will impact student’s access to clinical reproductive care and educational instruction. “We remain steadfast in our commitment to support women’s health and the safety and well-being of our community and to create a supportive and inclusive environment for educational success,” said Vanderbilt chancellor Daniel Diermeier.
New Protections for Pregnant Students Could Still Be Added
The Biden administration’s Title IX proposal could be changed to include additional protections for students who are pregnant or seeking abortion. The Education Department did not respond to request for a comment on whether the administration is considering this.
The proposed regulations will undergo a 60-day comment period where both antiabortion advocates and abortion rights campaigners are expected to be vocal about their concerns. “It will be interesting to see based on Dobbs [v. Jackson Women’s Health Organization] whether [in] the final rule the Department of Education decides it wants to go a bit further and talk about some of the abortion-related implications. I could foresee them potentially doing so,” said Sokolow.
Lee said the Education Department could add explicit language regarding what protections must be in place for college students seeking abortion care.
Advocates are also worried about the ability of colleges to provide an increasing amount of support to parenting or pregnant students, who already make up 20 percent of the undergraduate student population. Although Title IX offers basic protections against discrimination based on these factors, parent students are still highly vulnerable to leaving school due to increased responsibility and lack of access to childcare.
“We are already in a state of crisis for pregnant and parenting students,” said Lee. “I think that an added wave of student parents in need of services might only make that problem worse, because these universities and colleges just aren’t providing enough support. I fear as the population grows, the gaps are only going to get wider.”
There are concerns about an upcoming Supreme Court decision that could weaken federal regulatory power that could apply to Title IX.
Additionally, any advancements made to protect pregnant college students in Title IX remain vulnerable to Congress overruling them. Congress could also move to enact legislation to protect students’ access to reproductive health services, such as emergency contraception and birth control, through their college health centers, which could be important as some states move to limit access.
“Title IX advocates are really on the edge of our seats right now,” said Lee.