A Second Look at Emergency Contraception
by Ari Armstrong, April 20, 2005
On April 7 I criticized Representative Betty Boyd's bill 1042, which would have required hospitals to provide rape victims with information about emergency contraception. Governor Bill Owens vetoed that bill on religious grounds, though I suggested he should have vetoed the bill for other reasons (mainly that it would violate property rights and inject the legislature into matters that are rightly none of its business).
I also suggested three alternative remedies for dealing with any problem that might exist. First, if a doctor violates a contract for medical services by instead offering religious advice, without appropriate disclosure, then that is potentially actionable in the civil courts. Second, as Ralph Shnelvar suggested, it is possible for the legislature to require the police, who work for the government, to provide additional information to victims of rape. Third, as Democratic House Speaker Andrew Romanoff reportedly suggested, it is possible to deregulate the provision of emergency contraception so that it is easier to obtain. I should add a fourth possible remedy that has nothing to do with government: voluntary organizations could help make information about emergency contraception more readily available.
I wish to emphasize a more general point here. The primary function of the government is to deter violent crimes by prosecuting violent criminals and getting them off the streets. The government also provides police services that people can call upon when they're in danger, even though the police are often unable to respond fast enough to stop crimes in progress (and police powers are properly limited in a free society). Unfortunately, the legislature has gone to great lengths to ensure that the resources of police, the courts, and prisons are wasted on matters that should not be crimes, such as drug use and consensual sex. Every hour a police officer spends busting somebody for growing marijuana, providing sex for a fee, etc., is an hour that the police officer does not spend stopping a violently rape, or preventing some other crime against person or property. So if Boyd wishes to better target violent rape and other violent crimes, she will stand on the floor of the state capitol and denounce the massive misallocation of police and legal resources that the legislature has for so long promoted.
Prior to 2003, the legislature restricted freedom in one particular way that increased rape. Specifically, the legislature forbid the legal carrying of a concealed gun. John Lott writes in More Guns, Less Crime, "When state concealed-handgun laws went into effect in a county, murders fell by about 8 percent, rapes fell by 5 percent, and aggravated assaults fell by 7 percent" (Second Edition, page 51). Thankfully, in 2003 the Colorado legislature liberalized the concealed-carry statutes. However, according to the House Journal of March 14, 2003, Boyd voted "no" on SB03-024, "Concerning permits that authorize persons who demonstrate competence with handguns to carry concealed handguns in all statutorily authorized areas of the state..." While that bill was not as liberal as it ought to have been, it did allow people to carry a concealed weapon for personal defense. Yet in this case, Boyd voted to empower rapists and harm some of the potential victims of rape.
Yet, even though the primary function of the government is to prevent violent crime, there is no way to eliminate crime completely, and so it is appropriate to ask how best to help victims of crime get the best care. Nevertheless, I have seen no evidence that women who are impregnated through rape have difficulty obtaining relevant information about emergency contraception. Thus, 1042 would have to pass two tests. Its proponents would have to establish, first, that rape victims in fact have trouble obtaining such information, and, second, that the proposed remedy is appropriate. My previous article argues that the remedy of 1042 is not appropriate and that it would violate property rights and the First Amendment. Far better are the alternative remedies listed above, and the best thing politicians can do is deregulate the provision of contraceptive medicines.
On April 15, Jeanne Montgomery, who works for Boyd, called me about my questions. Here is the e-mail I had sent:
Date: Thu, 7 Apr 2005 13:39:22 -0600
Montgomery assured me the information I'm looking for is contained within the text of the bill. Unfortunately, that's not the case. Nevertheless, I promised Montgomery that I would examine the language of the bill before asking her to provide more information. I told her that I would publish any comments she or Boyd wishes to make in response. (I'll send a link to this article to Boyd's e-mail address, and I'll quickly add any response I receive.) A note from an alternate e-mail address of Boyd linked to the bill "as it was sent to the Governor."
The bill states in the first section of its legislative declaration, "(a) Each year more than three hundred thousand women are sexually assaulted in the United States. (b) A woman who is the survivor of a sexual assault may face the additional trauma of an unwanted pregnancy or the fear that pregnancy may result. (c) Each year, between twenty-five thousand and thirty-two thousand women in the United States become pregnant as a result of a sexual assault, and approximately twenty-two thousand of these pregnancies could be prevented if all women used emergency contraception."
Is so happens that the Colorado legislature cannot pass laws governing the whole of the United States. Thus, state-specific statistics would have been more helpful. The statistics seem to suggest that there a few hundred cases of rape resulting in pregnancy in Colorado every year. No citation is provided for the statistics, so it's difficult to verify them, and I'll have to take them at face value absent some convincing claim that the statistics are inflated or deflated. The bill does not indicate how many women who are impregnated through rape have difficulty obtaining information about emergency contraception, or how many wish to terminate their pregnancies.
The bill continues in its next section, "a) Standards of emergency care established by the American College of Emergency Medicine and the American Medical Association require that female sexual assault survivors be counseled about their risk of pregnancy and offered emergency contraception. (b) Emergency contraception is more likely to prevent pregnancy if taken as soon as possible, but emergency contraception prevents pregnancy if taken within one-hundred-twenty hours after unprotected sexual intercourse. (c) A recent survey of Colorado hospitals found that there are inconsistent policies and practices for dispensing emergency contraception and providing education to female sexual assault survivors. (d) Because emergency contraception is time sensitive and a sexual assault survivor may have delayed hospital treatment, it is critical that she be informed of this option and, if she wishes, be dispensed emergency contraception at the time of her examination or be provided a timely prescription."
I agree with the stated standards concerning emergency contraception, but the fact that two medical groups endorse reasonable standards does not undermine the various arguments I've made against 1042.
The bill asserts that emergency contraception is effective five days after intercourse. That's quite a lot of time for a victim of rape to seek information from various sources and make a reasoned decision. The bill refers to "inconsistent policies" among Colorado hospitals, but the bill does not indicate how many Colorado hospitals refuse to offer information about emergency contraception. The bill asserts that "a sexual assault survivor may have delayed hospital treatment," but the bill offers no indication of how many victims of rape remain in a hospital for five days or longer.
The bill offers no information about whether women who wish to switch hospitals have trouble doing so, or whether women have trouble finding information from other sources. I mentioned to Montgomery that I have never met a person who hasn't heard of the "morning-after" pill (since its invention).
The upshot is that 1042 fails to establish the existence of a problem. That doesn't mean that no problem exists, but legislators who wish to add new mandates over private affairs to the many volumes of statutes have an obligation to first demonstrate a problem. Boyd and her supporters, then, need to offer evidence concerning how many women in Colorado have trouble getting information from the hospital they initially visit, and, out of that group, how many have trouble getting information from other sources as well. Then the proponents of 1042 would have to establish that the remedy is appropriate, and that it is superior to the other possible remedies I have described.
So here's what 1042 proposes: "... All Health care facilities that... provide emergency care to sexual assault survivors shall adopt amendments to their evidence collection protocols for the treatment of a female sexual assault survivor that include informing the survivor in a timely manner of the availability of emergency contraception as a means of pregnancy prophylaxis and educating the survivor on the proper use of emergency contraception and the appropriate follow-up care. All such health care facilities shall offer emergency contraception to a female sexual assault survivor and either dispense the emergency contraception to the survivor or refer the survivor to a nearby pharmacy that can dispense the emergency contraception."
However, the bill contains a contradictory provision: "Nothing in this section shall be interpreted to require... a health care professional who is employed by a health care facility that provides emergency care to a female sexual assault survivor to inform the survivor of the availability of contraception if the professional refuses to provide the information on the basis of religious or moral beliefs..."
Yet if it's good for the legislature to micromanage the business practices of the owners and managers of private hospitals, why isn't it also good for the legislature to micromanage the business practices of individual doctors? This is one of those legislative compromises that destroys all semblance of legal principle.
Of course, it is bad for the legislature to micromanage any business practice. However, whenever a hospital or doctor enters into a relationship with a patient, that entails certain responsibilities, and a failure to meet those responsibilities is properly actionable. Thus, a hospital or doctor needs to offer some sort of disclaimer whenever religious advice is substituted for medical advice. Yet bill 1042 undermines this principle by treating hospitals and doctors differently.
To invoke a medical analogy, bill 1042 mandates the use of a hammer for brain surgery when what is needed is the scalpel of common law. The civil courts are the proper places for disputes regarding contract. The dispensation of emergency contraception should be legislatively deregulated and returned to the market and to the common law. The proponents of 1042 are correct that women should be offered relevant information about emergency contraception. Yet they attempt to use tyrannical means to obtain their ends. If the proponents of 1042 establish the political precedent that hospitals can be forced to do the bidding of the majority, then what happens if the majority wants to ban emergency contraception? Using political force to obtain one's social goals ultimately threatens those goals. Yes, crimes against person and property should be outlawed, and the law properly addresses matters of fraud and violation of contract. Yet when politicians and activists try to legislatively force the law beyond its proper scope, the result is a dangerous power constantly subject to further abuse.