Contraception bill not constitutional
Governor should wield veto

Rocky Mountain News
March 30, 2005

The advocates for a bill requiring hospitals to tell rape victims about emergency contraception are well versed in all the practical reasons why hospitals ought to do this. And we agree; hospitals ought to do this.

 But the question House Bill 1042 raises is whether the state should force hospitals to do something that some oppose for moral or religious reasons. That's not a practical question; it's a constitutional one, and we believe the only proper answer is "no."

 The legislature gave final approval to the bill Tuesday. We urge Gov. Bill Owens to veto it when it reaches his desk.

 Emergency contraception, sometimes called "morning-after" contraception, is in effect a large dose of birth- control pills. According to Planned Parenthood, it reduces the risk of pregnancy by 75 percent to 89 percent when the first dose is taken within 72 hours of unprotected sexual intercourse. There's some lesser effect up to 120 hours, or five days.

 EC works, Planned Parenthood says, "by stopping ovulation, fertilization, or implantation." And that's the problem. For those who believe human life begins when an egg is fertilized, preventing implantation is not morally distinguishable from abortion, and therefore it is profoundly wrong to advise people on how to go about doing it.

 That other people do not share their belief is quite beside the point. It is well-established constitutional doctrine that making people say what they do not wish to say is every bit as impermissible as preventing them from saying what they do wish to say.

 An institution with religious roots, even one providing a secular service such as medical care, may reasonably decide it cannot in good conscience do or say certain things. Of course, not all hospitals take this position, not even all Catholic hospitals. But those who do should not be compelled by the state to act against conscience.

 The bill has a conscience provision for individuals who do not want to be the one offering the information, but that does not help a medical director, for instance, who has to arrange personnel to ensure someone on the staff utters the words the law requires. Or a member of the hospital board that must adopt a policy at the state's direction.

 Advocates offer several reasons why this constitutional concern should be swept aside. Rape victims often have little choice as to where they are treated, and may not know about a hospital's policies. Up to a third of hospitals in rural areas, and a quarter in urban areas, the bill's supporters say, do not routinely tell women about EC. Few women know about the option, according to a spokeswoman for the Colorado Coalition Against Sexual Assault, and those few who do are so traumatized they forget.

 The bill wouldn't require a hospital to provide EC itself - but of course, that's this year. New York already requires hospitals to dispense the pill, and next we may well hear the argument that some Colorado pharmacies that may not stock them should be forced to do so.

 And for all its constitutional burdens, the bill would do nothing for rape victims who never go to a hospital - and that could be most of them. According to the coalition's own figures, only 16 percent of rapes are ever reported to authorities.

 Sponsors say that standards of medical care should not be compromised for religious reasons. That's a sound principle, but it is not a constitutional principle and it cannot be universally applied without infringing constitutional rights, which is why HB 1042 should not become law in Colorado.