Republican Crusade Against Birth Control is an (Unconstitutional) Exercise in Denial


Earlier this week, the Republican-controlled Arizona senate judiciary committee fast-tracked a law that would make it legal for employers to examine their employee’s medical records for proof that they are using birth control pills for non-contraceptive purposes.

Should the employer find that contraception is being used for, wait for it, contraceptive purposes, then the employer can refuse to cover the pills for personal religious reasons.

The law flies in the face of patient protections set forth in a variety of federal laws, most notably in the Health Insurance Portability and Accountability Act, better known as HIPAA.

HIPAA’s privacy provisions effectively prohibit the exact kind of action that the Arizona bill hopes to promote. Coupled with the interpretation of the American’s with Disabilities Act, HIPAA makes clear that an employer cannot ask an employee about medical information save for limited circumstances in which the employer may need medical documentation to determine whether an employee can do a job successfully (such as for someone with a bad back needing to lift heavy materials).

Moreover, questions about a current or prospective employee’s history or intentions concerning her sex life or pregnancy considerations, including questions concerning birth control, are almost universally considered to be not job-related and raise serious Title VII concerns.

This recent GOP campaign against women’s reproductive health has taken on such fervor that it seems to have made all the Republican lawyers forget about the lessons they learned on their first day of constitutional law.

The Supremacy Clause unequivocally states that laws passed by Congress “shall be the supreme law of the land.” Put another way, any state law that goes against either the Constitution or federal law is de facto unconstitutional and immediately struck down due to the fact that Congress has pre-empted the states on this issue.

Moreover, the pre-emption doctrine doesn’t even begin to leverage the fact that the Supreme Court has clearly found a right to medical privacy specifically in the context of contraceptive access,  a right that has stood untouched for almost half a century.

Passing laws that are unconstitutional on their face is an irresponsible waste of taxpayer dollars; the law will inevitably get challenged and taken to court, costing the state tens of thousands (if not hundreds of thousands) in lawyer’s fees and court costs.

Fiscal conservatism, this isn’t. Limited government? Ha.

The continued Republican fascination with carrying out a witch-hunt against women who use the birth control pill, exemplified by laws such as Arizona’s, is communicating a near complete detachment from reality.

Nearly all women (99%) use contraception at some point in time. The public debate concerning a woman’s right to control her personal sexual life was held decades ago and the social conservatives lost. Attempting to re-litigate this debate in the court of public opinion is a sure-fire loser and reeks of desperation and a scary detachment from reality.

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