No State Control Over Birth Control

The Colorado Freedom Report:  An independent journal of politics and culture.

The Colorado Freedom

No State Control Over Birth Control

by Ari Armstrong, April 7, 2005

Governor Bill Owens was right to veto House Bill 1042, which would have required (as described by the Denver Post) "all health-care providers in the state to offer information and referrals on how to get pills that let rape victims avoid pregnancy." Such pills are also called "emergency-contraception pills." However, Owens's reasoning behind his veto is faulty, and both publicized sides of the debate have avoided the relevant principles. (Read Owens's entire letter below.)

The position of the Democrats (along with a handful of Republicans) is that they want to achieve some end -- in this case notification about a medical treatment -- and so they propose legislation to force people to do their bidding. The Democratic position ignores the crucial principle that some things are best left to free, civil society, not political force. Just because something is good (or bad) doesn't mean the state should mandate (or forbid) it.

I also worry that the Democrats are more interested in the politics of the bill than in its potential benefits for victims of rape. I sent some questions to Representative Betty Boyd, the sponsor of the bill, and to Cynthia Stone of the Colorado Coalition Against Sexual Assault, a supporter of the bill. When and if they respond, I will add their comments to this article. I asked whether it's true that women sometimes have no choice regarding which hospital they enter, as has been claimed. My guess is that women usually are able to choose their hospital. Sure, if somebody is unconscious, he or she might be taken to a random hospital, but is that really a factor in the issue at hand? Next, what is the magnitude of the problem? How many raped women become pregnant, and do they really have a problem getting useful information about options for treatment? Can't women easily obtain information from places other than the hospital they initially visit? Unless a significant problem can be demonstrated, I see little need to add more laws to the statute books, which are already so large that even most legislators can't keep track of the laws. The Post's Mark Couch quoted Senate President Joan Fitz-Gerald, "I guess we'll have to wait for a new governor." So is the bill meant to address a real problem, or is it meant to pad campaign propaganda for the 2006 gubernatorial race?

Owens, on the other hand, has couched the issue in terms of religious freedom. He argued that the bill "does not protect the right of institutions, founded on deeply held moral and religious values, to decline to provide treatment options that violate those values." Owens described a specific problem he sees with the bill: "One method that is covered by this legislation would prevent a fertilized egg from imbedding in the uterine wall. This raises serious concerns for those whose conscience tells them that a fertilized egg is a human life." Owens's argument is problematic for two reasons. First, the core issue is not "religious values," the core issue is property rights, and religious liberty is only a derivative matter. Second, "religious values" do not always trump other concerns.

A principled case could and should have been written by Owens without any mention of religion, or with only a passing mention of it. Religion simply isn't the core issue. By grounding his argument in religion, Owens was obviously appealing politically to Catholics and the Protestant right. So Owens is no less guilty than the Democrats are of using the debate for partisan politics.

The real case against the bill is that the legislature should not control the peaceable activities of private organizations. This argument applies to all sorts of organizations, not just businesses, not just hospitals, and not just religiously-affiliated organizations. Politicians should not try to micromanage organizational activity. Organizations should be left free to pursue their goals as they see fit -- not as politicians demand. The central issue is that of rights -- of rights to conduct one's affairs as one believes is best, which entail rights to property. Related are rights of conscience, which include rights of religious freedom. By focusing only on the religious aspect of the debate, Owens, through omission, downplays the more fundamental rights at issue.

Religion does not override all other concerns. Indeed, the right of freedom of religion must be placed in a general context of property rights and the fundamental right over one's body. Here are some examples. It is commonly accepted that a parent cannot deny his or her children urgent medical care on religious grounds. Some people in the U.S. believe that the use of nearly all medical procedures is immoral, and instead the only proper remedies are prayer and faith in a supernatural entity. Yet if a parent allows his or her child to die for lack of medical treatment, we properly consider that child abuse, a crime. Some historical religions on this continent have demanded human sacrifice -- an obvious example of the violation of rights. Finally, we do not allow religious persons "whose conscience tells them" to attack certain doctors or judges to get away with it.

Rights of property entail rights of contract -- which means two or more people can make an agreement to exchange particular goods and/or services. Contracts are valid only when both parties accurately represent their intentions. A hospital visit is rightly considered a sort of contract: a person visits a hospital with the expectation that he or she will be treated with the best medical care and knowledge available. Thus, if a health practitioner knowingly withholds relevant medical information, that is properly considered a violation of contract. There is a general exception. If the health practitioner acknowledges up front that certain of his opinions are religious rather than scientific in nature, then the patient has sufficient information to act within the constraints of the contract. Similarly, if a patient explicitly requests religious, rather than scientific, advice in certain areas, then that becomes part of the contractual agreement. Generally, though, if a person is expecting the best, scientifically-grounded medical care, and the health practitioner instead offers religious advice, then the health practitioner has violated the contract.

The proper remedy for violation of contract is the civil judicial system, not the legislature. Again, it's simply none of the legislature's business.

True enough, the matter of contract is complicated by the extreme stress produced by rape. Ralph Shnelvar commented, "The problem this legislation is meant to address is the mental distress that a rape victim is undergoing. A woman needs to know what her options are especially when she is in extremis. It is well within the police powers of the state to recommend options to victims of crime. Perhaps the right thing to have done is require that any rape victim be contacted immediately by a police officer and the police officer explain this particular option." Shnelvar points to common reactions of victims of rape, and he adds, "The idea of contracts, etc., just falls apart when one of the parties to the contract is incapable of making rational decisions. And in the case of the 61% of rape victims under 18, they are legally incapable of making a binding contract. In that case the state must step in."

I appreciate Shnelvar's concern. However, hopefully parents will also become involved after minors are raped, and then they can help to make the appropriate decisions. Shnelvar's suggestion that the legislature mandate information outside of the context of private institutions is better than using coercion against such institutions, but I'll have to contemplate the suggestion further. Anyway, Shnelvar's comments are compatible with the view that the legislature should not seek to control private organizations and that civil courts are the appropriate mechanism to address disputes involving treatment at those organizations.

While my position disallows legislative interference with the policies of private hospitals, then, I recognize that civil courts may have something to say about those policies. In addition, my position does not preclude the moral condemnation of policies that entail the failure to dispense relevant information about emergency contraception. I believe hospital workers who refuse to share such information act immorally.

As an aside, there is one especially relevant way in which freedom of speech -- one manifestation of property rights -- is relevant to the debate over notification of contraception. Morally, forcing people to speak is the equivalent of forcing people not to speak -- both uses of force equally violate the freedom of speech. Yet, in this case, the left is actively crusading for "prior restraint" of speech, thus demonstrating once again that, today, the greatest threat to free speech and the First Amendment is the left, not the right. While free speech must be understood in the context of property rights and the right of contract, prior restraint of speech, particularly when the sort of speech under consideration need not violate the sanctity of contract, is never appropriate. To take another example, the state doesn't stop newspapers from printing allegedly libelous material beforehand; the matter is left to the civil courts.

Unfortunately, neither Owens nor the supporters of 1042 bother to discuss the relevant issues. Thus, both parties establish a dangerous precedent for future legislation.

April 8 Update

Jim Spencer discusses an excellent idea in his April 8 column for the Denver Post: "Thursday, House Speaker Andrew Romanoff suggested a different tack. He said he was discussing last-minute legislation that lets pharmacists prescribe and distribute emergency contraception in addition to hospitals."

Along these lines, an April 7 article in Reason by Kerry Howley argues that the correct political approach is more liberty, not more political controls: "Something is off when access to contraception depends on who is working the late shift at Walgreen's. The real scandal is not that women are being denied birth control, but that they have to ask for it. There is no reason why a woman's access to contraception should depend on a single Roman Catholic with a conscience, or why a pharmacist should have to weigh the decision between denying a woman her prescription and violating deeply held moral beliefs. Contraception doesn't belong behind the counter; it belongs over-the-counter. A woman's access shouldn't hinge on whether she has health insurance, whether she has a doctor she can call at 5 a.m., or how her neighbors feel about the culture of life. Women should be able to order stacks of the stuff off of the internet to keep in their medicine cabinets, and pharmacists should be free to keep their drugstores clear of anything they find morally questionable. Pharmacy owners should be equally free to work out their own individual policies -- and employ workers who agree to abide by them."

I fully endorse Howley's suggestion.

Owens's Letter Concerning 1042

April 5, 2005

The Honorable Colorado House of Representatives
Sixty-Fifth General Assembly
First Regular Session
State Capitol
Denver, CO 80203

Ladies and Gentlemen:

I am returning to the House of Representatives House Bill 05-1042, "Concerning the Availability of Emergency Contraception to a Survivor of a Sexual Assault." I vetoed this bill today and this letter sets forth my reasons for doing so.

Without question, House Bill 1042 is well intentioned. The crime of rape is a violent, heinous act. We all want each and every rape victim to be provided with compassionate and comprehensive treatment.

As part of that treatment, House Bill 1042 would require all hospitals to provide victims information about the availability of emergency contraception -- very broadly defined. While, on the surface, this bill seems simple and almost non-controversial, deeper reading and consideration show that it falls far short on two important fronts.

First, it does not provide victims with the full, balanced and detailed array of information they deserve to make this deeply personal decision about emergency contraception. Secondly, it does not protect the right of institutions, founded on deeply held moral and religious values, to decline to provide treatment options that violate those values.

It is regrettable that three amendments were defeated that would have provided the bill with appropriate balance, and would have safeguarded basic freedom of conscience. Had these amendments been adopted, this bill might well have earned my signature.

Yet I must consider the bill that is before me, not the one I wish was sent to me.

My first concern is a technical but essential difference in the forms of emergency contraception that are offered. One method that is covered by this legislation would prevent a fertilized egg from imbedding in the uterine wall. This raises serious concerns for those whose conscience tells them that a fertilized egg is a human life.

Yet the Legislature, regrettably, voted down an amendment that would have informed the victim fully about the effect of this form of contraception. Without informed consent, a woman could innocently violate her personal, moral and religious beliefs about when life begins. The provision of information is not a denial of treatment. Yet House Bill 1042 will not trust a woman with this extremely significant information.

My second concern centers on freedom of conscience.

It is one of central tenets of a free society that individuals and institutions should not be coerced by government to engage in activities that violate their moral or religious beliefs. While this bill did offer health care professionals the right to decline to offer emergency contraception due to religious or moral beliefs, it did not offer those same protections to health care institutions. This is wrong. And it is unconstitutional.

This bill would violate fundamental constitutional principles by forcing an institution to say things to patients that it explicitly does not believe to be morally or ethically valid. Allowing such a provision to become law would cross a constitutional line that we must not cross.

In addition, House Bill 1042 requires health care institutions to use a definition of pregnancy provided by government, not one that comports with an institution's moral or religious tenets. An amendment that would have safeguarded this freedom for institutions was likewise defeated.

Throughout Colorado - and our country - citizens benefit from the extra dimensions of care offered by hospitals founded by faith communities. These institutions, rooted in deeply held religious and moral values, have the right to provide comprehensive care in keeping with those values. This bill would unfairly and inappropriately infringe on the freedom of these institutions and diminish the free exercise of religion that is one of the bedrock rights Americans hold dear.

This bill does not give patients all the information that they deserve, nor does it safeguard basic freedom of conscience. Accordingly, I have vetoed this bill.


Bill Owens

The Colorado Freedom