The history of Connecticut’s emergency contraception law offers lessons that national and state Catholic Conferences would be well advised to study.
A state law went into effect on Oct. 1 requiring Catholic hospitals to change their rape treatment protocols and adopt state mandated provisions that undermine religious liberty. On Sept. 27 the bishops of Connecticut announced a policy of reluctant compliance with the new law.
Catholic teaching accepts treatment of rape victims aimed at preventing fertilization. But it strictly prohibits treatments that destroy human life, including the life of an embryo, which is nothing other than a tiny human being. Any treatment that prevents embryo implantation in the womb violates Catholic conscience.
Before the new law, Connecticut’s Catholic hospitals treated rape victims capable of conceiving with chemical treatment to prevent fertilization if “ovulatory phase testing” was negative. A positive ovulatory phase test indicates imminent or ongoing ovulation and increased risk that possible, if uncertain, consequences of the treatment may render the womb inhospitable to an embryo.
The law forces them to make such chemical treatment available to victims capable of conceiving without considering the results of ovulatory phase testing.
Two years of robust debate has made plain the most effective response to similar proposals in other jurisdictions. And make no mistake; the proposals will come quickly as the leading edge of a strategy aimed at mandating comprehensive “reproductive health” education, referral or services at licensed health care facilities, including Catholic hospitals.
Proponents of the Connecticut law built a coalition that included elected officials, representatives from Planned Parenthood of Connecticut and Massachusetts, NARAL Pro-Choice Connecticut, the League of Women Voters, The Merger Watch Project, Family Planning Advocates of New York, ACLU Connecticut, sexual assault counseling services, Connecticut Women’s Education and Legal Fund, Republican Majority for Choice, various religious organizations, medical professionals, including obstetricians and gynecologists, internists, forensic and registered nurses, physician’s assistants, emergency medicine practitioners, professional medical organizations, social workers, rape victims and an expert in emergency contraception who recently questioned claims that it has post-fertilization causality in a peer reviewed commentary in the Journal of the American Medical Association.
Op-ed articles, media interviews and university and community activism were coordinated with lobbying directed at legislators and the Catholic public, complete with polling data claiming wide support for emergency contraception among Catholics in Connecticut.
At legislative hearings in March, an artfully managed parade of witnesses assured the committee that emergency contraception merely suppresses ovulation and never causes an abortion. Others silently applied their view that abortion only refers to the disruption of implantation and thereby dismissed concerns for migratory “cells.”
Committee members were ready with carefully developed lines of questioning drawing out critical points in the debate. Other witnesses applied political pressure, noting their membership numbers. Still others presented constitutional and legal analysis, polling data, psychological aspects of rape trauma, and the history of similar laws in other jurisdictions where state Catholic conferences reportedly agreed to the bill. Several rape victims presented emotionally compelling testimony.
By the end of the hearing, a mini-trial had been skillfully presented that overwhelmed the meager response from an unorganized opposition of pro-life activists, two courageous rape victims, a lawyer and a deacon.
No medical expert appeared in opposition to the bill, thereby leaving unchallenged the claim of many proponents that Plan B does not prevent implantation. Readers of the Register are well aware that the jury is out on that issue. Nonetheless, a perception arose within the General Assembly that the Church simply misunderstood the science behind Plan B and medical testimony that all of Plan B’s secondary action could be explained by prevention of sperm migration gained greater weight.
Finally, there was widespread skepticism among legislators given the position of other state Catholic conferences, and this directly accounted for votes in favor of the law from otherwise solid pro-life legislators.
The lessons to be taken from the debacle that followed are plain enough: In order to preserve the independence of Catholic health care, a stand must be made in the Plan B debate.
It will require a powerful show of expert and lay witnesses at legislative hearings. Medical witnesses should include obstetricians, gynecologists, fertility experts and radiologists who can explain from existing medical knowledge how post-fertilization effects may be extrapolated.
Catholic hospital staff and administrators, bioethicists, moral theologians, rape victims, representatives of Catholic women’s organizations and waves of laity should testify.
Representatives of the Knights of Columbus and other Catholic societies should amass membership petitions of politically significant numbers and present them to legislators at public hearings.
Early lobbying, careful witness selection, preparation of suggested questions for sympathetic legislators, strict accuracy on medical facts and frank explanation of varying approaches by different state Catholic conferences are essential. Special attention should be given to the ready acknowledgment by the best-known proponents of emergency contraception (Davidoff & Trussell) that Plan B may have a post-fertilization effect, and that in the face of existing doubt women receiving it should be advised that it may prevent implantation.
That admission points to the value of ovulatory phase testing in the search for a reasoned judgment about the potential abortive effect in a given case.
Legal scholars and litigation counsel should present arguments focusing on the free exercise clause of the Constitution. They should point out the alternatives that exist to a Catholic hospital’s directly dispensing the drug. They should cite the Restoration of Religious Liberties Acts in states that have them.
In addition to health care facilities directly regulated by the law, other prospective plaintiffs should testify, including physicians whose ability to fully assess patients is limited by the act, and women of child-bearing age who, if raped, would want to know the results of ovulation testing before deciding to accept Plan B.
Vigorous defense will set the political stage for battles yet to come. By marshalling Catholic infrastructure and political assets, allies will be emboldened, adversaries confronted and wavering legislators possibly persuaded.
The Connecticut bishops led a courageous battle for more than two years with little visible support from rank-and-file Catholics. There were isolated pro-life activists and a small band of legislators who risked much for principle.
But to many in my own state who now so fervently express their dismay over the outcome, it is fair to ask: When legislative hearings invited public testimony and the shepherds looked about for their rallying flock — when the intensity of your witness was most needed — where were you?
It is the vocation of the laity to transform the temporal realities of the world, no less in statehouses than in families. Boots on the ground win land wars and legislative battles. The lesson for everyone is to be engaged early and often.
In many ways the looming battle is a graced opportunity.
During debate in Connecticut, some expressed confusion about Catholic doctrine, believing the Church makes an exception to its teaching on the intrinsic evil of contraception in the case of rape.
At every opportunity, be it parish forum or legislative hearing, speakers should explain that truly unitive sexuality is not about the mere joining of body parts, but about the communion of persons. Rape is thus not authentically unitive and the rapist’s sperm remains an “unjust aggressor” against which the victim has the right of self-defense.
To provide chemical treatment that prevents fertilization in response to rape is not only not an exception to Church teaching, it is a right the victim may demand in justice and one the Church champions so long as post-fertilization effects are excluded to a moral certainty.
That foundation is entirely appropriate in the debates shaping up across America about emergency contraception and rape treatment. It clearly demarks a line that cannot be crossed and it just may be the beginning of a new discussion about the richness of the Church’s teaching on conjugal love, human sexuality and the transmission of life.
Rev. Deacon Thomas J. Davis Jr., J.D., L.LM, M.A., is a deacon of the Melkite Greek-Catholic Eparchy of Newton.