Human Nature: Science, Technology, and Life.

The National Anti-Condom Committee?

Does the nation's leading pro-life organization oppose contraception?

Since 2007, the National Right to Life Committee has graded members of the House of Representatives on 10 votes. Of the first five, four were on stem cells; the other was on drug price controls. Of the most recent five, one was on abortion funding, another was on State Department appropriations, and three were on contraception. The scorecard is no longer primarily about abortion.

I'd like to think NRLC is anti-abortion, not anti-contraception. But when I apply its own standard, ignoring stated motives and focusing instead on the legislative record, I can't really defend it.

More here.

A Pro-Life Culture of Death

Ultimately, the militants don't care what's in the abortion-reduction bill. The mere fact that some pro-choicers support it is, by their reckoning, grounds to oppose it. NRLC Legislative Director Doug Johnson scoffs that the bill was drafted "under the direction of [a] career pro-abortion activist" (Rachel Laser of Third Way) and her congressional "sock puppet" (Rep. Tim Ryan, D-Ohio), who's trying to hide "his close collaborative relationship [with] key pro-abortion groups." Never mind that Laser has put in years of work, antagonized her friends, and risked her career as a pro-choicer for Johnson's cause. Never mind that Ryan has stood up for unborn life, vote after vote after vote after vote, in a party committed to legal and publicly funded abortion. Any pro-lifer who collaborates with pro-choicers is a traitor, any pro-life bill involving a pro-choicer is a "scam," and any Catholic who supports such a bill is a "fake" Catholic. Common ground is impossible. In the name of life, we must fight to the death.

More here.

Two Men, No Uterus

Can President Obama's "common ground" meetings between pro-lifers and pro-choicers accomplish anything? What topics and ideas should they focus on? Steve Waldman and I hash out the options, looping in our own ideas and many of the good points being made in an ongoing discussion at RH Reality Check. Abortion, birth control, surrogate pregnancy, George Tiller, and what the hell business men have talking about this stuff—it's all there. You can watch our conversation, courtesy of our friends at Bloggingheads.tv, by clicking on the video link above or by going to the Bloggingheads site. I look like I just rolled out of bed, but that's nothing new. Next time I'm gonna wear a nice shirt like Steve's and grow back some of that hair I lost.

Safe, Legal, and Early

My buddy Steve Waldman has a new idea for building consensus on abortion. He calls it "safe, legal, and early."

I get to call him my buddy for two reasons. One is that he's a good guy. The other is that there aren't a lot of people willing to seriously talk compromise on abortion. So we'd better stick together.

I like his idea. I don't think it stands on its own. But it fits a larger common approach: abortion reduction.

Waldman thinks a timing approach is different and better because later abortions destroy a more developed and therefore more fully human fetus. "Success would be measured on the basis of moving abortions earlier in the gestational cycle—even if that conceivably means more overall abortions," he explains. For example, "abortion reducers would likely oppose making RU-486 readily available on the grounds that it could lead to a dramatic growth in what is technically an abortion. But if the goal is have fewer late abortions, then promoting RU-486 makes great moral sense."

Actually, pro-choice advocates of reduction support RU-486 precisely for Waldman's reasons. Any woman who uses RU-486 has chosen and is going to get an abortion. RU-486 just makes sure the abortion is an early one. The reduction framework doesn't capture this benefit. The timing framework does.

But the timing framework has two problems. One is that conceptually, it's too complicated. A few years ago, I tried it out on some pro-choice thinkers who are pretty good at assessing political messages. My version was almost word-for-word the same as Waldman's: moving abortions earlier in gestation. (I tried a later version of it here.) They squinted politely. The backward-in-time idea, while logical, was a bit hard to get across in a pithy way, they explained. And less of a bad thing is easy to understand. But a bad thing in smaller bites? Without the "less" part, it's not particularly compelling.

The other problem is that people won't take the more-but-earlier-abortions deal. Yes, they prefer earlier abortions to later ones, as Waldman's poll data show. But those data say nothing about a trade-off for more abortions. So earlier timing isn't a substitute for reduction. It's an add-on.

In fact, the timing approach logically fits the reduction framework. A nine-week abortion is better than a 12-week abortion. A six-week abortion is even better. But eventually, this trajectory takes you all the way back before conception. That's not an abortion anymore. It's birth control or abstinence. In other words, it's reduction.

I'll tell you where I really like Waldman's idea. It's a good answer to abortion-delaying restrictions. Waldman notes:

Parental notification also sounds reasonable if your goal is reducing the overall number of abortions. But these policies may have a secondary effect: increasing the number of abortions that happen later. The 2006 Guttmacher survey found that among women who said they wished they could have had their abortions earlier, the most common reason they cited for delay was that it took a long time to make arrangements. Therefore, efforts to reduce the number of abortion clinics, cut off government aid to women who want abortions, or otherwise delay the decision may reduce the number of overall abortions but also make it more likely that those abortions that do occur will happen later. According to the Journal of the American Medical Association, a requirement in Mississippi that a woman wait 24 hours between realizing she's pregnant and an abortion decision led to both a decline in the overall number of abortions and a rise in abortions performed after 12 weeks.

He's totally right about that. It's immoral, from an intelligent pro-life viewpoint, to impose restrictions that simply delay abortions, adding days or weeks of fetal development to what is already a tragedy.

But for the same reason, let's be careful about imposing such restrictions on a timing basis. Under Waldman's proposal, for instance, "Medicaid funding would be generous for first trimester abortions, minimal for second trimesters, and non-existent for the third." That sounds good. But suppose you're just past your first trimester. A second-trimester abortion is considerably more expensive than a first-trimester abortion, and now we've taken away your anticipated means of paying for it. Good luck raising the money from family and friends while your fetus develops and the eventual abortion becomes that much more awful.

I liked Bill Clinton's idea: safe, legal, and rare. I like Waldman's idea, too. Barack Obama has a task force working on such ideas. Safe, legal, early, and rare is a good place to start.

Plan B and Personal Responsibility

Good news in the fight against teen pregnancy: The FDA is making to it easier for young people to get morning-after pills.

Here's the FDA's announcement:

On March 23, 2009, a federal court issued an order directing the FDA, within 30 days, to permit the Plan B drug sponsor to make Plan B available to women 17 and older without a prescription. The government will not appeal this decision. In accordance with the court's order, and consistent with the scientific findings made in 2005 by the Center for Drug Evaluation and Research,  FDA notified the manufacturer of Plan B informing the company that it may, upon submission and approval of an appropriate application, market Plan B without a prescription to women 17 years of age and older.

The New York Times warns that Plan B won't solve the problem:

Contraception advocates have pushed for easy access to Plan B for girls and women of all ages because the longer a woman delays in taking the medicine after unprotected sex, the more likely she will become pregnant. Eliminating doctors from the transactions, it was hoped, would lead to far fewer pregnancies and abortions. Indeed, advocates once predicted that widespread and easy access to emergency contraceptives would cut the number of induced abortions in half and slash teenage birth rates. But young people in the United States have so much unprotected sex—one in three girls under the age of 20 will get pregnant, with 80 percent of the pregnancies unplanned—that Plan B has been little more than a sandbag on an overtopped flood wall. Even women who are given the medicine free often fail to take it after having unprotected sex. "This is not going to be a cheap cure to the unintended pregnancy epidemic in this country," said James Trussell, director of the Office of Population Research at Princeton University.

Trussell has made the same point before: Emergency contraception has

not reduced unintended pregnancies in America or anywhere else that has introduced it. There is so much unprotected sex you would have to use so much emergency contraception to make a dent. ... It is not a magic bullet. If you want to seriously reduce unintended pregnancies in the UK you can only do [that] with implants and IUDs.

Why implants and IUDs? Because you don't have to think about them. They bypass the most common cause of what we erroneously call contraceptive failure: our own failure to use contraceptives properly and consistently.

I agree that using implants to bypass human failure is the most effective way to prevent unintended pregnancies. But that's no excuse for tolerating our failure in the first place. Emergency contraception, taken promptly after sex, can be (though you shouldn't rely on it) a magic bullet. But bullets don't work unless you fire them. Technology requires human agency.

Cecile Richards, president of the Planned Parenthood Federation of America, makes precisely this point about the FDA's decision: "Providing birth control, including emergency birth control, to young women helps them make responsible decisions and avoid unintended pregnancy."

The FDA hasn't solved the problem of unintended pregnancy. It has given you one more means to solve it. Go get your emergency contraception, now. And while you're at it, ask about an implant, so you won't have to count on a last-minute pill to bail you out. The responsibility is yours.

Female Condoms

Liberals want fewer unintended pregnancies and more empowerment for women. Conservatives want fewer abortions. Everybody wants to reduce HIV and other sexually transmitted infections. We can keep yapping about these things, or we can do something constructive.

Here's something constructive: female condoms. If you don't know what they are, read about them here, here, and here.

Yesterday, the Female Health Company announced FDA approval of its latest female condom. The company's previous condom was being sold for $2.80 to $4 a pop. The new one, which is made of different material (nitrile polymer instead of polyurethane) in a more automated process, will cost less. Projections range from 30 percent less to just 60 cents per condom at high volume. If a charity can cover the 60 cents, women can get it free.

With billions of male condoms in circulation, why are female condoms such a big deal? For starters, women are generally more responsible about birth control than men are. Even in the United States, 10 percent of women who end up getting abortions because they neglected contraception say their partners objected to using protection. I haven't checked the data lately, but I assure you that overseas the problem is even bigger. The more we take this decision away from men and give it to women, the more unintended pregnancies we'll prevent. That's the first thing female condoms do. They "put the power of protection in women's hands," says the Female Health Company. The director of the Center for Health and Gender Equity agrees that these condoms give "women another option in negotiating safer sex with their partners or husbands."

Second, because these condoms are designed around the vagina rather than the penis, they're unaffected by erection status. This is a big deal. Look at the company's "product" page and scroll down to the blue box outlining differences between male and female condoms. Female condoms "can be inserted prior to sexual intercourse, not dependent on erect penis," says one line of the box. Another adds: "Does not need to be removed immediately after ejaculation." Think about all the pregnancies that happen because the guy was in a rush or because the condom wasn't removed till the erection had subsided and the sperm had leaked. The female condom removes these timing problems. You put it on in advance, it's there for the duration, and you don't have to worry about the awkwardness of removing it before the guy goes limp.

In short, we're talking about a technology that compensates for human error.

Technology won't solve the whole problem of unintended pregnancies. That still requires personal and social responsibility in using contraception diligently. But better methods can certainly help us do the right thing.

Abortion? Don't Mention It.

In its final hours, the Bush administration implemented a regulation expanding the right of medical professionals to abstain from practices they find objectionable. On Friday, the Obama administration moved to "review" and eventually repeal the regulation. Organizations on all sides of the debate issued press releases responding to Obama's move. This table tells you everything you need to know about the politics of the fight:

1. Mentions of "abortion":

Christian Medical and Dental Association: 19
Family Research Council: 6
House Minority Leader John Boehner: 4
NARAL Pro-Choice America: 1
National Women's Law Center: 0
Center for Reproductive Rights: 0
Planned Parenthood Federation of America: 0

2. Mentions of "contraception" or "birth control":

NARAL Pro-Choice America: 3
Planned Parenthood Federation of America: 1
Center for Reproductive Rights: 1
National Women's Law Center: 1
House Minority Leader John Boehner: 0
Family Research Council: 0
Christian Medical and Dental Association: 0

To sum up: The liberal groups don't want to mention that the regulation involves abortion, and the conservative groups don't want to mention that it also covers the right to withhold birth control. Why? Just look at the polls. As Rachel Laser of Third Way astutely puts it, "If the president kept in place the conscience clause in regard to abortion but reversed it in regard to birth control, most Americans would agree that's common ground." And that's exactly what the Obama administration aims to do, according to a Health and Human Services official who spoke to Reuters:

The wording was vague enough to let health professionals invoke the conscience clause for things like contraceptives, family planning and counseling for vaccines and blood transfusions, the agency official said. ... "We recognize and understand that some providers have objections to providing abortions. We want to ensure that current law protects them," the official said. "But we do not want to impose new limitations on services ... like family planning and contraception that would actually help prevent the need for an abortion in the first place."

If Obama convinces the public that this is what he's doing, then politically, he'll be fine. And morally, he'll be well-justified.

Selling Rubbers

Ross Douthat is such a sensible and honest guy, I really ought to be able to sell him on the idea that contraception can significantly lower the abortion rate.

I pontificate; he demurs. I throw data; he remains unconvinced. I feel like a shingle salesman standing in the rain at the front door of a house that has holes in its roof and 2 inches of water inside. The owner's standing there, listening, his arms folded. How am I not making this sale?

Ross and his Atlantic colleague, Megan McArdle, have persuasively challenged what I used to believe: that birth-control availability was the key to reducing abortions. Three years ago, in a careful analysis, McArdle made a case that "the monetary cost of contraception is, at best, a small contributing factor to unwanted pregnancy in this country." A friend who works in reproductive health has impressed a similar lesson on me from her own research: Use, not access, is the missing ingredient.

The data back her up. So, last Sunday, I conceded the point:

Eight years ago, the Alan Guttmacher Institute surveyed over 10,000 American women who had abortions. Nearly half said they hadn't used birth control in the month they conceived. When asked why not, 8 percent cited financial problems, and 2 percent said they didn't know where to get it. By comparison, 28 percent said they had thought they wouldn't get pregnant, 26 percent said they hadn't expected to have sex and 23 percent said they had never thought about using birth control, had never gotten around to it or had stopped using it. Ten percent said their partners had objected to it. Three percent said they had thought it would make sex less fun.

This isn't a shortage of pills or condoms. It's a shortage of cultural and personal responsibility. It's a failure to teach, understand, admit or care that unprotected sex can lead to the creation—and the subsequent killing, through abortion—of a developing human being.

Ross listened thoughtfully, as he always does. But he didn't budge:

I remain unconvinced that [Saletan's] preferred method for such reductions—a dramatic new push, whether political or cultural, to expand the use of contraception in the United States—would produce anything like the results that he envisions. Consider, for instance, the idea that the government should dramatically expand eligibility for free contraception through Medicaid. ... [T]he universalization of this program, according to its supporters, might reduce the national abortion rate by somewhere between 1 and 2 percent. That's not nothing, obviously, but it's not a whole lot ...

Whoa, there. That's the old debate: access. What I'm talking about now is the other part of the equation: use. Access is important, but pills and condoms don't work unless people use them.

There's nothing fancy about this idea. I don't have a brilliant program in mind. All I have is process of elimination: If most people in this country, including me, aren't willing to ban abortions (check), and if you can't stop people from having sex (check), and if contraception is the only other way to prevent pregnancy (check), and if providing access to contraception hasn't solved the problem (check), then the remaining factor is human failure to use the contraception. Target that problem. I don't care whether it's through the federal government, states, clinics, schools, churches, or Conan O'Brien. All that matters is sending a forceful message that if you're not prepared to become a parent, you must either avoid vaginal intercourse or use birth control religiously.

If sex-ed programs aren't getting this message across, come up with better sex-ed programs. Or go through churches, doctors, parents, Facebook, Webkinz—whatever. Keep trying until you find something that works.

On this point, I should mention an equally sincere critique from the other side. One of my proposals for getting the message across was that "reproductive-health counselors must speak bluntly to women who are having unprotected sex." (I recommended the same message for men.) Jodi Jacobson, a longtime pro-choice activist and editor at RH Reality Check, says counselors are already doing this:

[W]omen's rights advocates and reproductive health providers have always put these two issues together.  It's called "prevention" and it is the core of reproductive health services that include efforts to prevent unintended pregnancies, prevent infections, assist people who wish to get pregnant, offer pre-natal and maternal care, and much more.

What exactly does Mr. Saletan think reproductive health counselors do, but guide people toward protected sex, help them find the methods they need and which will work best for them, and counsel them on correct and consistent use?

Most counseling matches this tone. It's deferential, technical, and service-oriented. I understand the need to gain and hold each patient's confidence. But plainly, the message isn't getting across. This should be obvious from the fact that half the women getting abortions in this country are coming back for their second or third termination.

I've sat and talked with people who staff and supervise clinics. One recounted an internal staff debate over whether a woman who came in for an abortion and wasn't using birth control should be encouraged to use it next time—or whether this was too morally presumptuous. Another described moral differences between American and European clinics. In many European facilities, she explained, if you come back for a repeat abortion, the counselors will demand to know whether you were using birth control and if not, why not.

I admire everyone who works in family planning and reproductive health. But we need to do a better job of getting the message across. One measure of our failure is the national abortion rate. And if you don't accept that as a moral challenge, take it as a political one. Because if you can't do something to dry up the demand for abortions, Ross Douthat and others will be happy to target the supply.

Obama and Social Issues

Well, it isn't really mine. It's the ideas of a lot of other people who have worked on abortion, birth control, sex education, marriage, and gay rights a lot longer than I have. These ideas are good for the country, and they suit you. All I've done is wrap them up in a package. It's in Sunday's New York Times. Take it.

Basically, it's a framework for making tangible progress on moral issues. As you know, these issues tend to be incendiary, toxic, and impervious to compromise. You don't need them. But they need you. They need your pragmatism. The philosophy you sketched in your inaugural address—an era of responsibility guided by old moral truths—works just as well for social issues as it does for economics.

That's the starting point. Just be yourself: old-fashioned about values but practical about solutions. Stick to those two principles, and good ideas will fall into place, forming a moral agenda that's right for our times.

None of these ideas are mine. On birth control and sex education, they come from places such as the Hewlett Foundation, the Brookings Institution, and the National Campaign To Prevent Teen and Unplanned Pregnancy. On abortion reduction, you can find them at Third Way and Democrats for Life, along with commendable initiatives from Planned Parenthood and NARAL Pro-Choice America. On gay marriage, the thinkers to read are Andrew Sullivan and Jonathan Rauch.

I can't promise that all of these ideas will work out politically. If you lead on abortion reduction through contraception, most Catholics and even most Americans who think of themselves as pro-life will go with you. But the Vatican, the bishops, and the hierarchies of the major pro-life groups will fight you tooth and nail. If you lead on gay marriage, you'll be excoriated. Politically, Rauch's proposal to offer marriage by another name makes more sense. I'm just drawing a rough map of the way forward. How we get there is up to you.

There's my pitch. I hope it's helpful.

The Temptation of Totalitarian Birth Control

People in a democratic country wouldn't let their government restrict family size ... would they?

Yes, they would. Agence France Presse reports:

More than 80 percent of Filipinos support family planning and almost half believe the government should limit the number of children a couple can have, according to a survey released here Monday. ... 44 percent believed that "the government should pass a law specifying the number of children."

Why would Filipinos say this? "The Philippine population now stands at around 90 million, with an annual growth rate of 2.04 percent, one of the highest in Asia," the article explains. And guess who's behind the high birth rate?

The findings come despite a widespread campaign by the dominant Roman Catholic Church opposing a draft law that would make family planning services more widely available in the Philippines. ... The Catholic Church, which counts over 80 percent of Filipinos as followers, has said the reproductive health bill, which has been pending in Congress for months, is headed for defeat after a high-pressure campaign by bishops.

What a mess. On one side, we have the Catholic bishops, who are so adamantly opposed to contraception that they're blocking the provision of birth control for voluntary use. On the other side, we have an emerging near-majority of the population that now favors coercive limits on family size. Do the math: The Church claims to represent 80 percent of the population, yet more than 80 percent reject its teachings on contraception, and 44 percent think the government should impose laws in precisely the opposite direction. It looks as though the bishops' anti-contraceptive absolutism is driving their own flock into the arms of a totalitarian remedy.

But in a modern society, no government could really enforce a cap on family size, could it?

Sure it could. Look next door at China, which uses state-controlled subsidies to punish couples who bear more than one child. It's quite effective. And here's what's really scary: The Chinese government has learned to treat children like any other state-allocated resource. It doesn't just impose a quota. It does what it can to guarantee your share. This helps the population accept the system.

In effect, China provides a "warranty" on children: You're limited to a state-prescribed quota, but you can refill the quota if you lose your child under specified circumstances, such as last year's earthquake. And what a warranty! The central planners don't just offer you the right to have another kid. They really deliver. Here's the report from Xinhua:

Officials of the National Population and Family Planning Commission told a conference here Friday that 757 Chinese mothers who lost children in the May 12 quake have become pregnant again, reflecting special exceptions to national and local population policies. As of Dec. 31, the officials told the agency's annual work conference, 5,724 bereaved mothers had received free reproduction services, including counseling, guidance, health exams, sterilization reversals and fertility treatments.

This is exactly what the government promised seven months ago. And, sure enough, according to the New York Times, the regime has "sent teams of doctors to carry out reverse sterilization operations." Now, that's what I call service. The state uses financial penalties to close up your reproductive system. Then, if you end up below quota, the state reopens you for business. In fact, if necessary, it does the business itself. Even the fertility treatments are free.

But state manipulation of family size is just an Asian thing, right? It couldn't happen here.

Think again. Guess which country now has Europe's highest birth rate? France. How has it achieved this? "State-provided child care and family support payments," including "nanny subsidies."  Australia has "cash payments for newborns." Spain pays "2,500 euros per new child." Austria offers "monthly payouts of $547 for the youngest child until the age of 3, and additional monthly checks ranging from $132 to $192."

These are governments that think they need more births. Most governments think they need fewer. If their citizens decide to support state-enforced limits on childbearing, and if agencies help each family fill its allotment, it's easy to envision a world where population growth is finally brought under control by the financial power of the state.

Slate V: Wall Street's big swinging digits and other science news from Grand Unified Weekly:

The Pro-life Case for Planned Parenthood

We have a late-breaking frontrunner for dumbest policy idea of 2008: defunding Planned Parenthood in the name of fighting abortion.

Stephanie Simon reports the latest developments in the Wall Street Journal:

Abortion opponents are pressing state and local governments to stop sending taxpayer dollars to Planned Parenthood, arguing that the nonprofit group has plenty of cash and shouldn't be granted scarce public funds at a time of economic crisis. ...
In recent weeks, Planned Parenthood chapters have lost public funds in two states as elected officials juggled tight budgets. Fulton County, Ga., which includes Atlanta, canceled a $420,000 contract as part of statewide cuts in health care. The move ended a teen-pregnancy prevention program and prompted a local Planned Parenthood clinic to raise fees to make up lost revenue. Sarasota County, Fla., ended years of subsidizing Planned Parenthood's sex-education programs with annual grants of as much as $30,000. ... The Family Research Council is developing a kit to help grass-roots activists dig through financial reports so they can make detailed presentations to elected officials about the assets and revenue of local Planned Parenthood chapters. The council has sent letters to 1,200 state legislators describing Planned Parenthood's strong financial position and urging "a second look" at public funding.

Defunding Planned Parenthood is hardly a new idea. What's new is the fiscal-responsibility angle. And from a pure cost-cutting perspective, you can make the case that Planned Parenthood brings in plenty of private funding and doesn't need public money. I think the pure cost-cutting perspective is a mistake, given the enormous social and economic benefits of preventing unintended pregnancies. But you can make that case, if you really believe in fiscal austerity.

What's insane, however, is the real motivation behind this push. The Family Research Council doesn't really care about economics. That's why, as you might have noticed, it's called the Family Research Council. The campaign to defund Planned Parenthood is really about abortions. FRC would like to see fewer of them. So would I. And that's the crux of the idiocy: The single best thing you can spend money on to reduce the number of abortions, not just in this country but around the world, is Planned Parenthood.

I'll say that again: If you define pro-life as preventing abortions, Planned Parenthood is the most effective pro-life organization in the history of the world. No, it doesn't give teenagers the idea of having sex. That idea comes to them quite naturally, thank you very much. What Planned Parenthood does, more comprehensively than anyone else, is to distribute the means and knowledge to control your risk of getting pregnant when you don't want to be pregnant. And those two things, combined with pressure to exercise that control assiduously, are the surest way to prevent abortions. If you wait till women are already unhappily pregnant, you're too late.

If you think Planned Parenthood is sufficiently funded, fine. Write your check or award your grant to some other, smaller organization that does similar work. But don't imagine that defunding birth control will buy you fewer abortions. It will buy you more.

Contraceptive Fudge: Addendum

In yesterday's post on the proposed HHS abortion "conscience" regulation, I overlooked a very important quote from Secretary Leavitt. Rob Stein of the Washington Post relates the following exchange from Leavitt's Aug. 21 conference call with reporters:

But when pressed about whether the regulation would protect health-care workers who consider birth control pills, Plan B and other forms of contraception to be equivalent to abortion, Leavitt said: "This regulation does not seek to resolve any ambiguity in that area. It focuses on abortion and focuses on physicians' conscience in relation to that."

Ambiguity is precisely what pharmacists have asserted in lawsuits demanding the right to withhold hormonal contraceptives. While framing the regulation as neutral, Leavitt is lending support to their position. And, as noted yesterday, the regulation explicitly applies to pharmacies (see page 24 of the PDF) which dispense contraceptives but do not perform surgical abortions.

When it comes to conscience rights, I'm a libertarian. As a pharmacist, you have every right to refuse to fill contraceptive prescriptions. But your customers have every right to boycott your store, and your employer has every right to fire you. If you don't like your employer's policy, open your own pharmacy.

The HHS regulation is not neutral. It uses government leverage to prevent employers from insisting that their employees honor consumer choice. In the name of one freedom, it suppresses another. And in the name of ambiguity, it lends official support to lawsuits that would extend this government intervention from abortion to contraception.

You can add your own views, pro or con, at consciencecomment@hhs.gov.

Contraceptive Fudge

HHS Secretary Michael Leavitt has issued a final version of his proposed regulation to protect medical conscience (PDF). As predicted, he has dropped the sentence that originally defined abortion as "any of the various procedures—including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action—that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation."

Leavitt has also chosen to leave open the possibility that the regulation will be applied that way. In that case, it would protect a provider's right to withhold oral contraception, which theoretically could prevent implantation of an embryo. Pharmacists and Catholic hospitals are already waging legal battles to assert this right.

The proposed regulation is 42 pages long. I'm embarrassed to tell you that I read it last week during my vacation. I was looking for a definition of abortion. I'll save you the trouble: There is none. The regulation draws no distinction between abortion and contraception.

In his blog, Leavitt has twice addressed the contraception question. On Aug. 7, he said his intent was to protect the right of conscience, not to define contraceptives as abortion. This left open the obvious next question: Intent aside, does the right of conscience protected by the regulation include the right to withhold hormonal contraception on the grounds asserted by pharmacist litigants: that it might be abortifacient? Two weeks ago, I invited Leavitt to answer that question. He has ignored it.

He has, however, answered a similar challenge from Mary Jane Gallagher, the president of the National Family Planning and Reproductive Health Association. In an Aug. 11 blog post, Leavitt quoted and rebutted her:

"Who's going to provide access to contraceptives services if the administration provides this large loophole to deny services?" [said Gallagher.] CQ reported Ms. Gallagher continued: "Providers are ‘given an oath—now they get to pick and choose what they want to do' if a regulation is issued, she said."

So, according to Ms. Gallagher's ideology, if a person goes to medical school they lose their right of conscience. ... There is something I'd like to point out to Ms Gallagher and the people she represents. It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.

Gallagher is explicitly talking about contraception. And Leavitt's response is to invoke conscience rights.

Last week, Leavitt said some practitioners might "press the definition" in the final HHS regulation and argue that hormonal contraception is abortion. They certainly will. Pharmacists for Life International is already on the case. So is the Christian Legal Society. Concerned Women for America says the equation of hormonal contraception with abortion, explicit in the original draft of the regulation, was right all along.

And when these litigants argue that the regulation implicitly covers contraception, they'll have lots of help from Leavitt. They can cite his response to Gallagher. They can also point out that the regulation explicitly lists pharmacies as a category of "affected entities." (See Page 24.) Last time I checked, pharmacies didn't do surgical abortions.

The argument on the other side will be that Leavitt has said he's not targeting birth control. "This regulation is not about contraception," he said in a conference call last week. "It's about abortion and conscience." But Leavitt has said the same thing about abortion itself. "This is not a discussion about the rights of a woman to get an abortion," he wrote in his blog. "This is about the right of a doctor to not participate if he or she chooses for reasons they consider a matter of conscience." Leavitt's point, in other words, is that the regulation doesn't ban anything; it just protects the right not to facilitate it. As he put it in the conference call, "There is nothing in this rule that would in any way change a patient's right to a legal procedure." But in asserting this right of refusal, the rule doesn't distinguish between surgical abortion and theoretically abortifacient drugs.

Birth-Control Blur

Last Tuesday, I wrote about a draft regulation, circulated by the Department of Health and Human Services, that would protect the right of private employees to refuse to facilitate any abortifacient chemical or activity. The draft rule defined abortion as "any of the various procedures—including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action—that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." It would thereby encompass the right to withhold oral contraception, which theoretically could prevent implantation of an embryo.

On Friday, HHS Secretary Mike Leavitt wrote a blog post about the draft rule. According to the Washington Post, Leavitt "denied that [the] draft regulation would redefine common birth control methods as abortion and protect the rights of doctors and other health-care workers who refuse to provide them."

Really? Where's the denial?

Here's the relevant part of Leavitt's post:

An early draft of the regulations found its way into public circulation before it had reached my review. It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true.
The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers.
The Department is still contemplating if it will issue a regulation or not. If it does, it will be directly focused on the protection of practitioner conscience.

Leavitt's post says his intent is to protect the right of conscience, not to define contraceptives as abortion. It doesn't deny that the final version of the rule will have the effect of treating some contraceptives as abortion. And there's every reason to believe it will do just that.

Leavitt writes as though conscience protection is a separate issue from the blurring of abortion with contraception. It isn't. A rule that guarantees the pro-life conscience rights of doctors, pharmacists, and other private employees is limited only by what those employees believe. And what many of them believe, as the Post's Rob Stein has documented, is that oral contraceptives are wrong because they can prevent implantation.

If you think Leavitt won't extend conscience protections that far, you haven't met his boss. Nine years ago, when George W. Bush was running for president, Tim Russert asked him: "Do you believe life begins at conception?" Bush replied: "I do." Two years later, as he prohibited federal funding of embryo-destructive stem-cell research, Bush repeated, "I think life begins at conception." Referring to pre-implantation embryos, Bush wrote that "it is unethical to end life," even to save the lives of others.

How can Leavitt fail to extend conscience protections to a pharmacist who refuses to fill a birth-control prescription because, like Bush, he believes that life begins at conception? If that belief is good enough to bar funding of stem-cell research, why isn't it good enough for the pharmacist?

If Leavitt really wants to clarify this question, he can do so by writing one more post in which he stipulates that the HHS rule, if issued, will not extend to drugs or procedures that act prior to implantation. I'm betting a month's supply of birth-control pills that he won't.

Fetal Separation

Starting this week, under orders from the state attorney general and the U.S. Court of Appeals for the 8^th Circuit, medical providers in South Dakota must present a scripted statement to women who seek abortions. The script, dictated by the legislature three years ago, declares that any abortion "will terminate the life of a whole, separate, unique, living human being."

Until now, I wasn't aware that the fetus—a term that, according to the South Dakota law, includes "the implanted embryo"—was a whole, separate, living human being. I thought it was ... you know ... implanted. I mean, I'm just a guy, not really an expert or anything. But, um, placenta? Umbilical cord? Do those terms ring a bell? And that's not even getting to the tricky stuff, like the role of maternal RNA in directing embryonic growth or all the work done by the womb to facilitate the embryo's attachment and nourishment.

I have to say, it's a relief to learn that the embryo is so complete and independent. I mean, it solves the whole problem. Here's this woman who just wants to be separated from her embryo. And lo and behold, it's already separate! No need to agonize. Just detach it and let it grow. It's separate, it's whole, it's living. Cancel the abortion. Perform a separation instead.

Sure, some cranky district attorney might take you to court, claiming your separation was really an abortion. Make sure you countersue for legal costs, because you've got a slam-dunk case. The law under which you're being prosecuted doesn't just declare that embryos and fetuses are separate. It also defines abortion as "the use of any means to intentionally terminate the pregnancy of a woman known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus."

How can South Dakota claim that you should know separation will kill the fetus, when South Dakota has insisted on informing you, prior to the procedure, that the fetus is already whole and separate?

Don't give me some medical-school mumbo jumbo about obstetrics. The legislature mooted all that blather when it superimposed its judgment. Fetuses are whole and separate. Therefore, being a law-abiding citizen, you have no reason to believe that separation will cause fetal death. Therefore, under the law's terms, separation is not abortion. No need to bother with the onerous paperwork and liability threats the legislature has assigned exclusively to abortion. You're not in the abortion business anymore.

Look, I don't like abortions. Fortunately, neither do the women who ask for them. Most abortions happen because women get pregnant when they're not ready. Prevent the pregnancy, and you prevent the abortion. So, here's a word of advice to legislators like those in South Dakota: Stop withholding birth control and stop lying to women about their bodies. You can't even keep your lies straight. That's how you ended up telling doctors to tell women that separation will kill a separate human being. See you in court.

Drugstore Choirboy

The movement to stamp out birth control appears to have taken an ominous turn. Until now, women with contraceptive prescriptions were just being turned down by individual pharmacists. Now they're being turned down by whole pharmacies. Refusals from individuals behind the counter have "resulted in pharmacists being fired, fined or reprimanded," reports Rob Stein in Monday's Washington Post. "In response, some pharmacists have stopped carrying the products or have opened pharmacies that do not stock any." Pharmacists for Life International names seven pharmacies that have signed a "pro-life" pledge and says others are doing the same.

It's not clear how many of these proprietors object to birth control per se and how many are abstaining because they think emergency contraception is abortion. Stein points out that in some states, the only legal way to refuse a prescription for emergency contraception is to abstain from offering contraceptives generally.

What's the reaction from pro-choicers and bioethicists? Here are excerpts from the Post story:

1) "I'm very, very troubled by this," said Marcia Greenberger of the National Women's Law Center, a Washington advocacy group. "Contraception is essential for women's health. A pharmacy like this is walling off an essential part of health care. That could endanger women's health."

2) "Why do you care about the sexual health of men but not women?" asked Anita L. Nelson, a professor of obstetrics and gynecology at the David Geffen School of Medicine at UCLA. "If he gets his Viagra, why can't she get her contraception?"

3) "If you are a health-care professional, you are bound by professional obligations," said Nancy Berlinger, deputy director of the Hastings Center, a bioethics think tank in Garrison, N.Y. "You can't say you won't do part of that profession."

4) Critics also worry that women might unsuspectingly seek contraceptives at such a store and be humiliated, or that women needing the morning-after pill, which is most effective when used quickly, may waste precious time. "Rape victims could end up in a pharmacy not understanding this pharmacy will not meet their needs," Greenberger said.

5) "We may find ourselves with whole regions of the country where virtually every pharmacy follows these limiting, discriminatory policies and women are unable to access legal, physician-prescribed medications," said R. Alta Charo, a University of Wisconsin lawyer and bioethicist. "We're talking about creating a separate universe of pharmacies that puts women at a disadvantage."

Let's take these objections one at a time.

First: "Walling off" women's health care? Beware dramatic metaphors from lawyers. There is no wall. You bring your scrip to the pharmacy, and the guy at the counter says, "Sorry, we don't stock contraceptives." That's annoying and, in my view, stupid. But nobody's walling you in. Your burden consists of finding another pharmacy.

Second: Why Viagra and not contraception? Because some pro-lifers view hormonal contraception as potentially lethal. I don't share their anxiety about this theoretical risk to an early embryo, particularly when the alternative, in the event of pregnancy, is a high likelihood of fetal killing. But you can't blow off the argument by assuming that contraception should be covered because it's more important than Viagra. The whole point of the argument is that you're looking at it backward: The fact that contraception is more consequential than Viagra is a reason to be more wary, not less, of distributing it.

Third: "Professional obligations" to provide all health care? Actually, doctors and hospitals draw moral lines around their practices all the time. This doctor won't pull the plug; that one won't do abortions; this other one can't in good conscience collaborate in your faith-based treatment plan.

Fourth: Humiliation? Sorry, but part of true equality is brushing off people who don't respect you. If the guy behind the counter won't sell birth control, he's the one who should be embarrassed, not you. Walk out, and don't come back.

Fifth: Whole regions where pharmacies won't stock contraceptives? Come on. Only seven have even signed the "pro-life" pledge. It's true that abortions have been driven out of rural counties. But politically, the resistance to birth control is nothing like the resistance to abortion. A pharmacy that won't stock contraceptives looks pretty silly.

Greenberger does make a good point about wasting women's time when, as in the case of morning-after pills, speed is essential. And Stein's reporting suggests the abstaining pharmacies aren't making their policies clear enough. If they won't do this voluntarily—by posting them, for instance—the law should make them do it. If I were writing the regulations, I'd draw up a big, fat, standardized "We don't stock birth control" notice, complete with a 24-hour toll-free number that will direct you to the nearest pharmacy that has what you need.

But I wouldn't force pharmacies to sell birth control if they don't want to. In particular, I dread Charo's suggestion that providers should be compelled to offer "legal" drugs. One of this country's greatest achievements is its separation of legality from morality, so that individuals can hold themselves to a higher standard, as they see it, without forcing it on everyone else. This is the principle many pro-lifers have rejected as they press for abortion bans to "teach" the immorality of killing fetuses. Happily, some have shifted their energy from attacking abortion clinics to setting up "alternative" pregnancy centers. It's a shift from violence and harassment to exhortation and, at worst, deceit.

So, please, don't tell moralists they have to do or sell whatever's legal. If you do, you won't like what happens to the law.

Unnatural Family Planning

Friday morning, I thought I was all done investigating the ins and outs of the Chinese one-child policy. And then this happened. On Friday evening, Xinhua, the state news service, reported:

China's family planning authority are to send a medical team to conduct surgery to reverse sterilization operations on parents wanting another child in China's earthquake zone. Zhang Shikun, director of the science and technology bureau of the National Population and Family Planning Commission, said, "The team, comprised of experts on childbearing, will conduct surgery in the quake-hit areas to provide technological support for those wanting to give birth to another." The team was part of the commission's plan to provide free reproduction services, including counseling, guidance, surgery, and the implementation of artificial reproduction technology, for those who wish to have another child, she said.

You have to hand it to the Chinese government. First, they tell you not to give birth to more than one child (unless you run a farm, or you're an ethnic minority, or you and your spouse have no siblings, or a bunch of other exceptions). On the other hand, they're going all-out to make sure that if you obeyed that policy and lost your only child in the quake, you can get another.

Those tubes you tied, thinking you were done procreating? We'll untie them for you, gratis. Vasectomy? Schmectomy. In fact, if you're too old now to make babies the old-fashioned way, we'll provide "artificial reproduction technology" to help you along.

Now, that's what I call full-service public health insurance.

What's really going on here, of course, is public fury over all the kids who died in poorly built schools. The government limited those families to one child and then failed to protect their kids. The whole premise of Saving Private Ryan was that the U.S. government dare not cost a family its last child. But that's exactly what has happened in China, thousands of times over. According to Xinhua, family-planning authorities in Sichuan, the quake-hit province, estimate that 7,000 families lost their sole children in the disaster, and 16,000 sole children in other families suffered injuries or disabilities.

Through this combination of totalitarianism and incompetence, the Chinese government took away one of nature's greatest fulfillments: procreation. Now it's trying to make up for that theft by delivering surgeries and technologies to replace your lost child with a new one. You have to wonder what other options the government would be offering bereft parents in their 40s if reproductive cloning were sufficiently refined.

Would that be wrong, once the technology is safe? If the one-child limit is morally defensible, and if that child dies through government neglect, and if it's OK to use artificial technology to help the couple make a new child ... what's wrong with cloning the old one?

Go ahead, speak up. It's a free country.