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Tilting at Windmills

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July 31, 2008
By: Kevin Drum

THE CONSERVATIVE WAR ON CONTRACEPTION....Here's the latest front in the conservative war on contraception: a proposed regulation that would strip federal funding from any healthcare organization that doesn't allow workers to opt out of providing abortion services to patients. This wouldn't have a big impact on actual abortions, of course, since anyone who's pro-life wouldn't work for an abortion clinic in the first place. However, the new regs define abortion so broadly that it covers "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 life of a human being in utero between conception and natural birth, whether before or after implantation."

In other words, birth-control pills, IUDs, Plan B emergency contraceptives, and God only knows what else. "As soon as you have a definition in one part of federal law," says R. Alta Charo, a lawyer and bioethicist at the University of Wisconsin at Madison, "it can become the inspiration for the reinterpretation of other statutes." Which is, I'm sure, the whole point. This is just the initial skirmish.

Kevin Drum 1:26 AM Permalink | Trackbacks | Comments (51)

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Doesn't show much long-term thinking. That's all the Republicans need is for elitists to start producing litters of left-leaning future voters.

Posted by: Everyman on July 31, 2008 at 4:04 AM | PERMALINK

All of Bush and the other conservative fascists like-minded policies have led to more abortions, not less. When they cut international aid to organizations that provided reproductive services, abortion rates in those countries jumped. Like nearly all of their policies, they are utter failures. Education is the key, which fascists don't want to provide a nickel for.

Posted by: The Conservative Deflator on July 31, 2008 at 6:10 AM | PERMALINK

The late George Carlin: "Masturbation isn't illegal. If it were, people would take the law into their own hands." This is a warning to conservatives.

Posted by: Shag from Brookline on July 31, 2008 at 6:42 AM | PERMALINK

But...but...those of us who pointed out that these guys' eventual goal is going after Griswold were assured we were just paranoid.

Posted by: shortstop on July 31, 2008 at 6:56 AM | PERMALINK

What's going on here as well is an attempt to make is so that pharmacists can refuse to fill prescriptions for contraceptives -- and not be fired for this.

'Any healthcare organization' can be construed as being the same as Walgreens or Longs or any other pharmacy in that they accept federal dollars (Medicare 'scrip plans, for example...) in payment for filling prescriptions.

Posted by: Becca on July 31, 2008 at 7:25 AM | PERMALINK

Could this perhaps be a Rove-like conspiracy to bring conservative voters to the polls in November? I wonder.

Posted by: MarkC on July 31, 2008 at 7:45 AM | PERMALINK

I don't know that I'd call it a conspiracy, MarkC, but yeah, it's likely that they're looking for stuff that will appeal to the religious right, given that McCain leaves those folks cold.

Posted by: shortstop on July 31, 2008 at 7:52 AM | PERMALINK

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 life of a human being in utero between conception and natural birth

Since the birth-control pill stops ovulation, just how would it be covered by these regulations?

And there was me thinking that conservatives objected to regulation - they are a bunch of fucking hypocrites!

Posted by: blowback on July 31, 2008 at 8:35 AM | PERMALINK

Maybe the neotards imagine a future like the one displayed in Idiocracy - the smarter people are too busy to reproduce, while the dumber fuck like bunnies. It's the GOP's only chance at long-term political domination.

Posted by: MeLoseBrain? on July 31, 2008 at 8:43 AM | PERMALINK

@ blowback,

My understanding is that the pill does not necessarily completely stop ovulation. For one thing, many prescriptions include a week of placebo pills each month, so that the woman taking them has a regular period. Also, some women do get pregnant while on the pill.

Conservatives argue that there are a certain number of cases in which conception occurs, but the pill prevents implantation of the fertilized egg in the uterine wall. They refer to these cases as "abortions" because conception has taken place. Many doctors, on the other hand, define pregnancy as beginning at implantation, which helps distinguish normal pregnancy from fallopian pregnancy or from the case where a fertilized egg fails to implant due to natural causes.

I think it's really a matter of definition either way, and the choice between the definitions is arbitrary to a certain degree. The difference is that Republicans are willing to restrict women's rights based on their arbitrary definition. That's called "faith."

Posted by: The Fabulous Mr. Toad on July 31, 2008 at 9:01 AM | PERMALINK

Numerous studies have shown that access to contraception and its use is directly tied to the number of abortions. Western European countries that have the highest contraception access and highest utilization rates have the lowest abortion rates. Abortion rates in the US are much higher because contraception use is not as widespread.

Interestingly, the legal status of abortion affects the abortion rate very little. Countries where abortion is illegal have high abortion rates if access to contraception is not easily available.

Posted by: bakho on July 31, 2008 at 9:23 AM | PERMALINK

Hey, this is great for McCain!!!!

Actually, not. If we had a sentient press, they'd be wondering what his position is on this. Will he seek its repeal or amendment if he becomes President? That would put him in a fine mess. As I recall, about 80% of Catholics favor easy access to birth control.

Posted by: David in NY on July 31, 2008 at 9:28 AM | PERMALINK

Why is it okay to kill the sperm, but not to kill the zygote?

Posted by: s9 on July 31, 2008 at 9:44 AM | PERMALINK

Isn't it a religious war, or a Rove coalition war?

As an old line conservative from an old line conservative family, I just can't get used to redefining conservative to mean minions of the Pope, Holy Rollers, and borrow-and-spenders like the King of Spenders and Coyote-in-Chief Jorge Bush.

Posted by: Luther on July 31, 2008 at 9:50 AM | PERMALINK

I always wonder about all of the women who take "the pill" for non-contraceptive reasons (e.g. exceptionally heavy bleeding/cramping, history of endomitriosis). Would these women be allowed a prescription? Who would decide if a prescription was for a "legitimate medical reason" or "just contraception"?

Posted by: female on July 31, 2008 at 9:58 AM | PERMALINK

This wording, not “ assisting any procedure or any action” that may directly or indirectly result in the nonimplantation of fertilized eggs, would also forbid assisting in “natural” birth control methods permitted by Catholics. The “rhythm” methods consist of confining sexual activity to the periods of the month when the woman’s uterine lining has not developed, and therefore is much less likely to allow implantation. Ovulation usually occurs timed with development of the lining, but, when it does not, rhythm-permitted fertilization will usually result in a nonimplanted egg. The method obtains much of its contraceptive effect from such nonimplantation. Assisting in this method (fertility
thermometers, mucus and hormone measurements, even calendars) would be forbidden.

The other “natural” method commonly used is extended lactation. Lactation inhibits ovulation and the monthly development of the lining of the uterus, and can be extended over many years from a birth, providing extended birth control. Hormonal birth control mimics this method, and functions similarly. But lactation is not completely effective in preventing ovulation, and becomes less effective with time, and the lack of a fully developed uterine lining would then make implantation unlikely; the method is intrinsically “abortaficient”.

In contrast, the dosages applied in hormonal birth control are developed to prevent ovulation with near certainty, and maintained at that level. Nonimplantation of fertilized eggs is then very rare; the method is much less “abortifacient” than “natural” birth control.

Posted by: David on July 31, 2008 at 10:09 AM | PERMALINK

For those of us who have known their intentions for years, this comes as no surprise. For those who think some grand bargain can be struck with the pro-lifers, please understand that it is control of the female sex organs in which they are interested. They will not stop at zygote protection.

Posted by: trrwv on July 31, 2008 at 10:11 AM | PERMALINK

Education in this area seems to be very selective.
Posted by: Orwell

Obviously, you're education was very selective as well. Because we know that the "Just say no!" policies of the repukes you promote have worked so well.

Answer this, Orwellian idiot, why do the rates of teen pregnancies go down under dem presidents, but up under repukes? Maybe because education works better than abstinance only?

Posted by: MeLoseBrain? on July 31, 2008 at 10:26 AM | PERMALINK

If Senator McCain is elected these proposed regulations won't make any difference because he will appoint at least two more radical rightwing justices to the U.S. Supreme Court which is just one justice away from reversing Roe v Wade. And if they reverse Roe v. Wade, they'll reverse Griswold, the case that preceded Roe v Wade and that invalided Connecticut's law that prohibited dispensing contraceptives. The McCain Supreme Court would throw out the "pneumbra of privacy" that was the underpin of the Griswold and Roe decisions -- and reproductive rights will be lost for generations.

That is what's at stake in this election. The radical right which owns the Republican Party has had its eyes on this prize for 40 years. If moderates are so foolish as to vote for McCain, I hope they're ready to buy their contraceptives illegally, because that's the only way they'll be able to get them in a few years.

Posted by: Dan L on July 31, 2008 at 10:38 AM | PERMALINK

Jebus Christ on toast, I wish all these people would leave management of my uterus up to me. I guess it's only social engineering with liberals do it.

Posted by: Art Eclectic on July 31, 2008 at 11:02 AM | PERMALINK

This is kind of silly (as well as outrageous, of course) because as soon as Obama takes over the reigns of the Executive, any and ALL rules and "executive orders" are up for grabs. ANYTHING that this Admin puts in place can be undone with the stroke of a pen by the next President. This isn't law, afterall, which is the SOLE providence of the Congress, this is just parochial, temporary, and transient rules.

Posted by: Praedor Atrebates on July 31, 2008 at 11:09 AM | PERMALINK

In the long run this will every bit as successful as the gay marriage issue for conservatives. On the order of 10 - 12 million women currently use the pill or IUDs. Kaiser Foundation:

http://www.kff.org/womenshealth/upload/Contraception-Fact-Sheet-PDF-3244.pdf

Probably at least that many more have used it at some time in the past. I doubt they are going to like being labeled as abortionists and having pharmacists second guess their decisions.

I can't think of a better way damage the Republican brand than this.

Posted by: Tentakles on July 31, 2008 at 11:10 AM | PERMALINK

David: In contrast, the dosages applied in hormonal birth control are developed to prevent ovulation with near certainty, and maintained at that level. Nonimplantation of fertilized eggs is then very rare; the method is much less "abortifacient" than "natural" birth control.

OMG. The strict Catholics practicing the rhythm method are ALSO murdering millions of pre-implanted babies. Clearly the only solution is to put chastity belts on all women. They will make regular doctor visits and the belts will be unlocked only when medical tests prove that they are ripe for impregnation. If they don't report for re-belting within a week, the police will show up at their door with a warrant for their arrest.

Think of the pre-implanted children!

Posted by: cowalker on July 31, 2008 at 11:10 AM | PERMALINK

As far as education goes - the 3D ultrasound technology is not recommended for those considering an abortion. This appears to be a way to limit the information and education not increasing the patient's awareness.

You can't see anything on a 3D ultrasound before 24 weeks. The vast majority of abortions are done prior to 12 weeks. Why do you want to force women to have an untested, potentially risky and useless procedure before you'll "let" them have an abortion?

Posted by: Mnemosyne on July 31, 2008 at 11:18 AM | PERMALINK

Maybe liberal doctors and healthcare workers should refuse to treat hunting accidents on moral grounds.

Posted by: do on July 31, 2008 at 11:25 AM | PERMALINK

I wonder, is "pulling out" on the list? What about sterility? Here's grinning to see anti-contraception advocates assert that every penis in vagina instance should lead to conception or face penalty of the law.

Posted by: Birch Bayh on July 31, 2008 at 11:35 AM | PERMALINK

Why is it that these "sex is only for married people to procreate" zealots never insist on seeing the marriage licenses of men whose Viagra prescriptions they fill? Oh, and an affidavit from their wives, stating that they are the intended sex partners and that they are not using contraception?

And why do they never picket outside fertility clinics, where embryos are routinely discarded every day?

Could it be that the only embryos/zygotes/etc. they care about are the ones inside women, and that their real goal is to keep women barefoot and pregnant? Gee, ya think?

Posted by: sullijan on July 31, 2008 at 11:56 AM | PERMALINK

I have to agree with sullijan, when you break down all their arguments what you finally come to is a complete fear of female sexuality. Notice there are no admonitions towards men or male sexuality -- in every instance all the way down the line it has to do with women (unless the topic is male-male sexual relations and we all know how that one turns out.) Female sexuality is so utterly and completely terrifying to the Catholic church that it will make every possible attempt to chain it up and lock it away behind a curtain of "sin" while male sexuality gets just a wink and a nod. The depth of their efforts shows the depth of their fear.

Posted by: Art Eclectic on July 31, 2008 at 12:41 PM | PERMALINK

Art Electic: I agree with you and sullijan, but the Bush administration is packed with evangelicals and fundamentalists, not Catholics. They're the ones pushing this agenda.

Posted by: eparker on July 31, 2008 at 12:58 PM | PERMALINK

Many doctors, on the other hand, define pregnancy as beginning at implantation

That is because this is the only medical definition of the word.

I think it's really a matter of definition either way, and the choice between the definitions is arbitrary to a certain degree.

False. There is a medical definition for pregnancy which is not in the least bit arbitrary. Pregnancy begins when a fertilized egg is implanted in a woman's uterus. It is important to clarify these things because part of the fundamentalist strategy is to redefine medical terms to suit their agenda. Pregnancy begins at implantation, regardless of where one believes "life" begins.

Posted by: drjimcooper on July 31, 2008 at 1:21 PM | PERMALINK

OLD news, Kevin. Two weeks old. But, no "A-list" bloggers picked up on this, I guess, until A-list newspapers wrote about it.

I noted this 11 days ago (blog post updated to today).

That said, re the larger issues ...

Abortion rights should be based on a Bimester (semester) and not a trimester system. Just one way in which Roe v. Wade was less-than-stellar in its ruling. Per the blog link, I’d “federalize” the first bimester more than now, but allow even more state-by-state freedoms in the second bimester.

Posted by: SocraticGadfly on July 31, 2008 at 1:30 PM | PERMALINK

drjimcooper: Exactly. Stopping them in their tracks every time they try to redefine something is essential. Because the only way they can succeed is by muddying facts that are very clear and making reality seem "arbitrary" and "a matter of opinion." It's a time-tested tactic that's worked for tobacco companies, global-warming deniers, creationists, etc.

Posted by: sullijan on July 31, 2008 at 1:31 PM | PERMALINK

I think that other a couple of obvious exceptions most people responding to this post agree that the proposed regulations are just plain wrong. It is great to be able to state our anger and outrage regarding the proposed regulations. Whatever the pharmacist believes it is that persons job to fill the prescriptions presented by the customers not to enforce his or her view of what is right and wrong. The same holds for other members of the medical world my rights and the rights of my wife and daughter to the medical we need trumps the provider's morals. This is not about freedom of religion but it is another clever move by the Republicans to force their morals on those who disagree. It is more of the big lie and double speak and general manipulation of the language to hide the truth -- which is about the only thing they are good at.

Now everybody should go http://www.plannedparenthood.org/newsroom/press-releases/draft-hhs-rule-21565.htm where you will see the letter that was sent by Planned Parenthood to HHS. Copy the letter, slap a coversheet on it stating your support of Planned Parenthood's position and send it to your Senator, Congressman and to Secretary Michael O. Leavitt at HHS.

One last thing -- your state may be set to impose similar regs -- find out and take action.

Bob O'Reilly

Posted by: Bob O'Reilly on July 31, 2008 at 1:39 PM | PERMALINK

Shortstop, in either Griswold or Roe, SCOTUS had the opportunity to cut beyond "penumbras" and make a clear "right to privacy" finding under the Ninth Amendment. Backstopping that, the court could have referenced the Western European countries with written constitutions that added privacy rights to their post-WWII new constitutions.

Also, the Religious Right needs to first accept that one-third of pregnancies are spontaneously aborted; conception is much less perfect than they like to admit.

Where’s the Intelligent Designer?

Posted by: SocraticGadfly on July 31, 2008 at 1:47 PM | PERMALINK

Dr. Jim:

Why implantation? I really want to know.

By the way, in saying the definitions were arbitrary to some extent, I wasn't saying there couldn't be better or worse ones, or that the definition was purely a matter of convention. I just meant that it's not like defining a Euclidean triangle to have four sides, which would just be conceptually wrong. In a field like medicine, the definitions change over time, which shows that they're partly dependent on the collective judgment of the medical community. That's all I meant.

Posted by: The Fabulous Mr. Toad on July 31, 2008 at 2:07 PM | PERMALINK

Another note: The Wall Street Journal points out only 28 senators signed on to a letter to Leavitt opposing the idea. So, are 23 “Dems” counting Lieberman OK with this then?

Posted by: SocraticGadfly on July 31, 2008 at 2:10 PM | PERMALINK

Why implantation? I really want to know.

IIRC, because there's no way to tell if an egg has been fertilized or not. When you take a pregnancy test, it's testing to see if you've started producing the hormones that mean the egg has implanted.

Not to mention that most fertilized eggs don't go anywhere and end up being flushed out naturally by the body. If we're going to start deciding that pregnancy begins at conception and not implantation, somebody's going to have to do a lot of microscopic examinations of tampons to figure out whose fertilized egg made it to implantation and who didn't.

Posted by: Mnemosyne on July 31, 2008 at 2:49 PM | PERMALINK

If only there were some saying you could apply to the notion that the GOP are potentially missing some larger issue by focusing on this...

Posted by: notabbott on July 31, 2008 at 2:51 PM | PERMALINK

Mnemosyne: you remember everything.

That first explanation demonstrates what I meant by saying medical definitions can be arbitrary to some extent. If that's the reason for the definition, then as soon as we come up with technology to test for fertilized eggs, the definition goes out the window.

The second explanation shows one reason why defining life as beginning at conception is problematic. Although I guess the wingnuts would say that it's OK for God to abort -- only we can't.

Posted by: The Fabulous Mr. Toad on July 31, 2008 at 3:47 PM | PERMALINK

The plutocrats combine with the religious extremists against birth control because the former want to increase the labor supply and push down wages. They also want to pump up development, the housing bubble, etc, maybe commodity prices etc. I don't know what the fundies' excuse is, since the Bible doesn't ever say that birth control is wrong and is even shaky on the subject of abortion: Exodus 21:22. As for what the cornucopian libertarian fringe's (Julian Simon, etc.) excuse is, for wanting more births - probably the same as the plutocrats'.

Posted by: Neil B. ♫ on July 31, 2008 at 5:02 PM | PERMALINK

BTW, Griswold was decided correctly once one appreciates the Ninth Amendment's requirement that we search for reasonable natural ("unenumerated") rights, which privacy and self-control ought to be.

Conservatives bray about "strict construction" but in fact, A9 makes that impossible in the manner they suggest. And, why are they *for* government laws that restrict freedom (real freedom about what consenting adults want to do, not fake "freedom" for us to be offered undesirable choices of trade-offs about employment, business offers, etc.)? Isn't that ironic?

Posted by: Neil B. ♪ ♪ ♪ on July 31, 2008 at 5:07 PM | PERMALINK

Mr. Toad:

Even if a way to test for fertilization pre-implantation were developed, it would still be a moot point, unless the bluenoses actually tried to prosecute every woman whose hormonal profile indicates that. Even given the extremism of these folks, I doubt that they would go that far. Imagine the cost of doing such a thing.

Posted by: Wolfdaughter on July 31, 2008 at 7:31 PM | PERMALINK

Even given the extremism of these folks, I doubt that they would go that far. Imagine the cost of doing such a thing.

But what does the cost matter when you're saving the baybees!?!!
/snark

Seriously, though, it's not that a regimen like that would be forced on every woman in America. Just the poor ones who can be forced to put up with it in order to get health care.

Don't forget, abortion and contraception were always available even when they were illegal ... as long as you were upper-class and could afford to pay. It was the working class and the poor who were SOL if they wanted to restrict their childbearing. If Griswold is overturned, Jenna Bush will still be able to get her prescription for the Pill. It's us little people who will have to suffer.

Posted by: Mnemosyne on July 31, 2008 at 8:22 PM | PERMALINK

All the overturning of Roe and Griswold will mean is that states will be able to ban abortion or birth control. The banning of abortion would probably happen in at least half of the red states and that would be about the extent of states' sovereignty. I doubt that any would outright ban birth control, a few might ban some things like IUDs, RU-486 and morning-after pills, but if regular birth control pills are still legal, what's going to prevent doctors from prescribing them off-label? They would have to have sting operations to keep most docs from doing this.

Posted by: natural cynic on July 31, 2008 at 9:30 PM | PERMALINK

Wolfdaughter,

There are lots of religious conservatives who do define life as beginning at conception and an unimplanted zygote as a human being, and who therefore think that any artificial means of preventing implantation is murder. What I would expect is not mass prosecutions, but an effort to ban any birth-control method that artificially prevents implantation.

Natural Cynic,

I agree with your analysis in general, but lest we forget, Griswold was Griswold versus Connecticut, so there was at least one state that banned contraceptives. That said, however, hormonal birth control is just so popular these days that I agree, I can't see a patchwork of states banning it entirely now.

Posted by: The Fabulous Mr. Toad on August 1, 2008 at 11:40 AM | PERMALINK

I doubt that any would outright ban birth control, a few might ban some things like IUDs, RU-486 and morning-after pills, but if regular birth control pills are still legal, what's going to prevent doctors from prescribing them off-label?

Before it was sold in nice convenient packs as Plan B, the doctor would give you a regular pack of BCPs because the morning-after pill IS the birth control pill. It's just that you take two of them at a time instead of one. So if they can ban the morning-after pill, there's no reason they couldn't ban the regular pill since it's the same thing in a different package.

I agree it's a political loser to ban it outright (look at what happened in South Dakota when the legislature tried to ban abortion outright) but all they have to do is put more and more restrictions on it until it's effectively unavailable to anyone not in a major urban area.

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