By Sherry F. Colb
In my Justia Verdict column this week, I analyze HHS Secretary Kathleen Sebelius's decision to reverse a recommendation by the FDA to approve over the counter (OTC) distribution of emergency contraception to any girl of reproductive age. Secretary Sebelius, by ordering the FDA to reject the OTC application, kept in place the requirement that girls under seventeen produce a prescription before purchasing the morning after pill. My column considers and evaluates various arguments that Sebelius and others have made in defense of her decision, including the contention that the morning after pill is actually an abortifacient. In this post, I want to consider the restriction of reproductive rights in the context of a story that appeared in the New York Times over the weekend.
The story focused on a eugenics policy that prevailed in North Carolina (along with most of the states in the U.S.), a policy through which many people who were deemed genetically unfit were sterilized without their consent. Programs like this continued to operate into the 1970's. Their victims included young girls who had been raped by older men, poor teenagers from large families, people with epilepsy and those deemed to be too “feeble-minded” to raise children. Such policies represented an attempt to improve the hereditary quality of the human population.
In what way would I connect a eugenics policy with a prescription requirement for young girls seeking emergency contraception? Before answering this question, let me first note some obvious distinctions. First, the eugenics policy has the purpose and effect of reducing or eliminating reproduction by some people (those deemed "undesirable"). By contrast, limiting access to emergency contraception has the foreseeable effect of increasing the odds of reproduction by some people (girls under the age of seventeen).
A second difference is in the restrictiveness of the respective policies. While sterilization forces infertility on its targets, a prescription requirement does not force reproduction on its targets. The latter makes it only somewhat more difficult to avoid reproducing in one particular way -- through post-coital contraception.
Having recognized two substantial differences between the two policies, it is worth noting -- with regard to the second distinction -- that there are those today who would favor a far broader policy amounting to compelled reproduction, whether by prohibiting virtually all abortions (including contraceptive methods such as the IUD and the morning after pill, which can help prevent implantation after fertilization has already occurred).
With regard to the first distinction, it is useful to observe that some of the sterilization programs in this country operated at the same time as did prohibitions against the use of birth control. Though we can distinguish policies that favor reproduction from policies that disfavor it, we might choose instead to focus on the line that separates coercive versus individual-autonomy-supportive reproductive policy.
In a coercive regime, a government (or a Church or other effective source of coercion) may have a variety of objectives, including (1) reducing the population (e.g., China), (2) increasing the proportion of "fit" people in the population while reducing the proportion of "unfit" (in its extreme form in Nazi Germany and in lesser forms throughout Europe and the United States), (3) increasing the population (Ceausescu's Romania), or (4) allowing the population to grow as much as nature and religious morality jointly permit (the Vatican).
What all such regimes have in common is the notion that a government, Church, or other powerful entity has the authority and right to decide the genetic future of the human race or of the population of a particular state or country. Whether this means that women will be forced to have abortions against their will or whether it means that women will be forced to become or to remain pregnant and bear children against their will, the unifying theme is the subordination of the will and the bodily integrity of the individual person (most often a woman) to the perceived good of the group, however defined.
Returning to HHS Secretary Sebelius's decision, we can understand the dilemma of the young girl seeking emergency contraception in at least two very different ways. One approach would conclude, as the Eugenics Board of North Carolina might have done, that a young girl seeking emergency contraception is a bad seed. She has arguably evidenced both a lack of self-control and a failure to plan ahead, both of which traits make her unlikely to be a good parent and may even -- if one accepts the eugenics premise -- bode poorly for the genetic "fitness" of her offspring. From this perspective, we might think it best that she use emergency contraception, because we do not want her to have a child, and we might even see fit to require her to do so.
Another approach would be to view her act of having sex as a moral forfeiture of her interest in avoiding pregnancy (or an expression of the lack of any such interest in the first place). Having potentially allowed the union of sperm and egg, she now must accept the natural consequences that follow. The authority thus sees fit to deny her emergency contraception (whether OTC or by prescription), which interferes with the plan for the human race attributed to a deity.
And then there is the autonomy approach, which holds that no individual should be forced to serve another's reproductive ends, however desirable from the community's perspective. Under this approach, we may have our own views about whether teen pregnancy is a good thing (most of us would firmly believe that it is not), but we would refrain from pursuing our vision of the good by using force against the individual girl or woman whose body is directly implicated. It is from this perspective that I oppose Secretary Sebelius's decision to require prescriptions from girls under seventeen who wish to purchase the morning after pill. As President Obama reportedly said in a speech years ago, "[a] woman's ability to decide how many children to have and when, without interference from the government, is one of the most fundamental rights we possess." I understand Secretary Sebelius's decision as a small but nonetheless real repudiation of this commitment to an individual woman's fundamental right to bodily integrity. It caters to those who would favor a coercive approach to reproduction, and I sincerely hope that it does not portend more of the same.