Fight Emerges Between Mark Udall, Cory Gardner Over Birth Control

The following post first appeared on FactCheck.org.

A major issue in the Colorado Senate race has been a state ballot initiative on “personhood” and what it could mean for common forms of birth control, including the pill. Neither side is quite telling the whole story.

• Democratic Sen. Mark Udall’s latest ad says that his challenger, Republican Rep. Cory Gardner, embarked on an “eight-year crusade that would ban birth control.” That lacks some context. Gardner supported anti-abortion measures that don’t explicitly call for a ban on birth control but could lead to some forms of birth control being illegal.
• Gardner says he has changed his mind and no longer supports the Colorado initiative, precisely because it could ban common forms of birth control. But he still backs a federal personhood bill, which contains the same language that would make a ban of some contraception a possibility.

Gardner is on record since 2006 supporting so-called personhood measures at the state and federal level. These bills and ballot initiatives generally said the rights afforded to a person would begin at the moment a human egg is fertilized. The federal bill would impact the definition of a person under the 14th amendment to the U.S. Constitution, while the state measure would obviously affect only Colorado law.

Gardner’s campaign says he backed the proposals as a means to ban abortion, not contraception. But, as we’ll explain, the wording of these measures could be interpreted to mean hormonal forms of birth control, including the pill and intrauterine devices, would be outlawed. Other non-hormonal forms, such as condoms, wouldn’t be affected, but oral contraception (the pill) is the most popular form of birth control among U.S. women.

Some — even many — voters who see Udall’s ads in Colorado will understand the reference, as this is the third time a personhood measure has been on the ballot in the state. It was defeated in 2008 and 2010. But some may not be aware of it and the Udall ad doesn’t specifically mention the ballot measure. Without the context, those voters may well be led to think that Gardner’s position was that he wanted to completely ban birth control.

Udall has been highlighting the issue for months, dating back to April when an ad from the Democratic lawmaker said Gardner “championed an eight-year crusade to outlaw birth control here in Colorado.” Another ad in June featured Udall speaking directly to camera, saying, “Because this really matters, it’s important you hear this directly from me: My opponent, Congressman Gardner, led a crusade that would make birth control illegal.” The latest spot making a similar claim launched in August. The Senate Majority PAC, a Democratic super PAC, also ran an attack ad against Gardner in May, saying the congressman “led the charge for a constitutional amendment that would outlaw common forms of birth control.”

‘Personhood’ and Birth Control

Personhood measures have been on the ballot in other states in the past, but none has been approved by voters. Federal bills also have been introduced, dating back to the early 1980s, to say that life — and the rights afforded to a person — would begin at the moment of fertilization.

Such a measure is again on the ballot in Colorado this November. The latest ballot initiative in the state says that the term “person” in the state criminal code must apply to unborn human beings, whereas earlier versions of the initiative defined a person, in any context, as “any human being from the moment of fertilization,” or the “beginning of the biological development.” Gardner supported the previous measures, and also said on a 2006 questionnaire for Colorado Right to Life that he would support a federal personhood bill.

These measures don’t say that common birth control methods would be banned, nor do they even say that abortion would be banned, though proponents have said that ending abortion, along with curtailing stem cell research and limiting how in vitro fertilization is practiced, are the main goals. Groups against abortion often point to the majority opinion of Roe v. Wade, which said that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” They say establishing “personhood” for a fetus would reverse the Supreme Court ruling.

Opponents of these measures argue that they also could well lead to a ban on hormonal forms of birth control, such as the pill and intrauterine devices, or IUDs. And some anti-abortion rights groups also oppose these contraception methods.

In a 2012 statement opposing personhood amendments, The American Congress of Obstetricians and Gynecologists said “oral contraceptives, intrauterine devices (IUDs), and other forms of FDA-approved hormonal contraceptives could be banned in states that adopt ‘personhood’ measures.” The Colorado Gynecological-Obstetrical Society also opposed the 2008 state measure, saying it was “deeply concerned about the unintended consequences of this amendment which could widely impact clinical practice,” including reproductive technology and “routine contraception.”

Why? Because while the pill and IUDs mainly prevent pregnancy by preventing ovulation, they also can prevent a fertilized egg from implanting in the uterine wall. Since the personhood measures define a fertilized, but not yet implanted, egg as having the full rights bestowed upon a person, it would be questionable whether these hormonal forms of birth control would be legal.

Medically — and in terms of federal regulations — a pregnancy has been defined as beginning at implantation, not fertilization. Implantation in the uterus occurs several days after an egg is fertilized. In fact, many fertilized eggs don’t end up implanting in the uterus and resulting in a detectable pregnancy. The Colorado Gynecological-Obstetrical Society said that anywhere from 30 percent to 70 percent of fertilized eggs “spontaneously” fail to implant.

Personhood measures also raise questions about what they would mean for in vitro fertilization, which often involves creating more than one embryo in an effort to help a woman conceive — the American Society for Reproductive Medicine has been against personhood initiatives — and the “morning-after pill,” which is essentially a high dose of birth control pills that delays ovulation. The FDA labeling on the drug says it can also prevent implantation — but that’s not even a settled scientific fact, as a June 5, 2012, New York Times article detailed.

Elizabeth Nash, state issues manager at the Guttmacher Institute, which conducts research on reproductive health issues, told us these are short, vaguely worded measures — none of which has been passed — that could affect several laws. “You can’t know the impact immediately and presumably there would be a court case to ferret out exactly what it means” in terms of abortion and contraception.

So, the ads would be more accurate to use the word “could” instead of “would,” since we can’t predict exactly what impact these measures would have, if any were ever passed. We asked Nash about other state regulations that define pregnancy as beginning at fertilization or conception — language that exists in some state fetal homicide laws. She said there haven’t been any legal challenges or efforts to apply such language to birth control thus far. “People haven’t really taken it a step further.”

Some proponents of the personhood measures also have said the end result could be to outlaw some forms of birth control. In 2010, when Republican Ken Buck was also being criticized for this issue in a Colorado Senate race, a representative for the state Right to Life chapter told 9News in Denver that “[m]any of the oral ‘contraceptives’ have an action that makes the womb inhospitable to a developing embryo and hence, the new living, growing baby is prevented from residing where his or her Creator intended until birth.”

Gardner’s Position

In March, Gardner himself acknowledged that the personhood initiative could lead to a ban or restriction on some forms of birth control. “The past four years as I’ve learned more about it, I’ve come to the conclusion it can ban common forms of contraception,” Gardner said, according to the Associated Press.

Here’s more on Gardner’s switch from the Denver Post:

Denver Post, March 21: “This was a bad idea driven by good intentions,” he told The Denver Post. “I was not right. I can’t support personhood now. I can’t support personhood going forward. To do it again would be a mistake.”

Gardner, a Yuma Republican who has represented the conservative 4th Congressional District since 2011, late last month jumped in the U.S. Senate race to try to unseat Democrat Mark Udall.

He did not say when he changed his mind on personhood, but said he began examining it more closely after voters rejected it by a 3-to-1 margin in 2010.

“The fact that it restricts contraception, it was not the right position,” Gardner said. “I’ve learned to listen. I don’t get everything right the first time. There are far too many politicians out there who take the wrong position and stick with it and never admit that they should do something different.”

Gardner announced his change of position eight months after he had signed on as a co-sponsor to the federal “Life at Conception Act,” which would extend “equal protection for the right to life” under the 14th amendment to the “preborn” from the “moment of fertilization.” That language — giving the rights of a person to the fertilized egg — is exactly what raises the question of what such a measure would mean for some forms of birth control. Yet Gardner’s campaign told us he was not withdrawing his support for the federal legislation. Spokesman Alex Siciliano told us by email: “The federal proposal in question simply states that life begins at conception, as most pro-life Americans believe, with no change to contraception laws.”

We don’t see how the Colorado initiative and the federal bill, which supporters in Congress describe as a “personhood” measure, are different on this point. And neither does one of the groups supporting the state initiative. Jennifer Mason, a spokeswoman for the Yes on Amendment 67 Campaign, which supports the ballot measure, told Colorado public radio station KUNC: “Obviously [Gardner's] a victim of some bad political advice, there’s no reason for him to pull local support while he’s still 100 percent behind the federal amendment. It doesn’t make any sense.”

We agree. And we didn’t receive any further explanation from the Gardner campaign on the contradiction. We asked Nash at the Guttmacher Institute if there was something in the federal bill that would preclude the concerns over birth control, but Nash agreed that the “moment of fertilization” language was the reason these types of proposals had the potential to prohibit access to hormonal forms of birth control.

In a response Web ad to the Udall and Senate Majority PAC ads, Gardner says that he was being attacked for “changing my mind about personhood after I learned more, and listened to more of you.” Actually, he isn’t being attacked for changing his mind in Colorado, but rather for supporting the personhood initiatives in the first place.

The Democratic ads say he “led the charge” or conducted an “eight-year crusade” that would “ban birth control.” The word “crusade” may be overstating it, but Gardner did support state ballot initiatives and co-sponsored federal personhood legislation in 2012 and 2013. The Gardner campaign says he had supported the measures as a means of banning abortion. And concern over birth control is the reason he says he changed his mind — at least partially — this year. He even wrote an op-ed for the Denver Post in June, calling for birth control pills to be sold as over-the-counter drugs, without a prescription.

Even though this is the third attempt to pass a personhood ballot initiative in Colorado, we can’t say whether voters will understand what the ads are talking about. It would be clearer to say that Gardner supports efforts to ban abortion that could also ban some forms of birth control. As for his change of position, voters in Colorado should know Gardner still supports a federal bill that would prompt the same concerns over birth control as the state measure he says he rejects on the same grounds.