Politics & Policy

Romney: Flip-Flopping on Contraception?

On the tarmac in Bedford, Mass., January 2012
He has defended conscience exemptions, but maybe not as much as he could.

Mitt Romney has recently been under fire from his GOP rivals over a 2005 Massachusetts law mandating that all hospitals, including Catholic ones, offer the morning-after pill to rape victims.

“In December 2005, Governor Mitt Romney required all Massachusetts hospitals, including Catholic ones, to provide emergency contraception to rape victims,” charged Rick Santorum in a Politico op-ed this week. “The fact is,” said Newt Gingrich on Wednesday, “Governor Romney insisted that Catholic hospitals give out abortion pills against their religious belief when he was governor.”

#ad#Romney’s campaign has pushed back on this narrative forcefully, pointing to Romney’s decision in July 2005 to veto the bill Santorum and Gingrich have referenced, which mandated that all Catholic hospitals provide the morning-after pill to all rape victims. (The Church instructs hospitals to first test whether a rape victim has conceived; if she has not, the morning-after pill may be given to prevent conception.) Romney not only vetoed the bill, but forcefully spoke up against it.

“Yesterday I vetoed a bill that the Legislature forwarded to my desk,” Romney wrote in a Boston Globe op-ed. “Though described by its sponsors as a measure relating to contraception, there is more to it than that. The bill does not involve only the prevention of conception: The drug it authorizes would also terminate life after conception.”

Unsurprisingly, the Massachusetts legislature overrode Romney’s veto. It wasn’t a close vote, either: State senators unanimously voted for the bill, joined by 139 House members. Only 16 House members voted to uphold the veto.

But the saga didn’t end there. On December 7, the state’s Department of Public Health stated that Catholic hospitals remained legally exempt from the mandate to distribute emergency contraception, despite the fact that the new law included no religious exemption. The department contended that the new law did not nullify a 1975 statute that did provide an exemption for hospitals that wished not to provide abortion or contraception for religious reasons.

“We feel very clearly that the two laws don’t cancel each other out and basically work in harmony with each other,” department commissioner Paul Cote Jr. told the Boston Globe.

#page#On that same day, Romney said, “My own view is that every hospital should provide to rape victims information about emergency contraception, or emergency contraception itself.” The Boston Herald reported that the Romney administration denied there was any tension between Romney’s statement and the DPH’s contention that Catholic hospitals were exempt from the mandate: “Romney spokesman Eric Fehrnstrom denied Romney’s comments yesterday are inconsistent with the action by the DPH he oversees: ‘The governor’s view is not inconsistent with what the law is because the current law allows a hospital to provide emergency information, emergency contraception itself, or neither.’”

The DPH decision was instantly, hugely controversial. State attorney general Tom Reilly blasted the decision, telling the Romney administration, according to the Herald, that “you are not going to try and get around the law with a backdoor regulation that ignores the clear intent of this law.” NARAL Pro-Choice Massachusetts chief Melissa Kogut said of Romney, per the Herald, that “if he feels strongly that hospitals should be providing information about emergency contraception or emergency contraception, he should tell the commissioner of public health to back off.” Lieutenant governor Kerry Healy, who had made clear that she did not agree with Romney’s decision to veto the bill in the summer, once again went public with her disagreement, this time dissenting from the DPH’s legal interpretation.

#ad#The Boston Globe railed against the decision as “unacceptable” in a December 8 editorial. The editorial board did not absolutely reject the legal reasoning the DPH had used, but instead suggested that it might be necessary for the legislature to pass more legislation to rectify the matter. “The issue will not be resolved definitively until legal action gives priority to one law or the other, or until the Legislature does what it should have initially: nullify the conscience exemption in the older statute as it applies to emergency contraception for rape victims,” wrote the Globe.

That same day, Romney, acting on advice from his own lawyer, decided the DPH’s decision could not stand. “Romney reversed course on the state’s new emergency contraception law yesterday, saying that all hospitals in the state will be obligated to provide the morning-after pill to rape victims,” reported the Boston Globe on December 9.

Romney, the Globe added, “said yesterday that he had changed direction after his legal counsel, Mark D. Nielsen, concluded Wednesday that the new law supersedes a preexisting statute that says private hospitals cannot be forced to provide abortions or contraception.”

Not everyone agreed with Nielsen’s legal reasoning, including Daniel Avila, who then was the associate director for policy and research at the Massachusetts Catholic Conference (an organization within the Boston Archdiocese). “They’ve taken the position now that the preexisting statute somehow does not shield Catholic and other private hospitals from this new mandate,” Avila told the Pilot, a Boston Catholic newspaper. “I think there is a solid legal argument against that position.”

C. J. Doyle, executive director of the Catholic Action League of Massachusetts, acknowledges that Romney did well to veto the bill, but was displeased by his decision to heed his lawyers’ advice and nullify the older conscience statute. “It was Governor Romney who effectively pulled the rug out from under Catholic hospitals by coming up with this rather novel, unheard-of interpretation of this pre-existing statute,” he says.

Anne Fox, president of Massachusetts Citizens for Life, reflects on the incident with more sympathy for Romney. “His lawyers came in and said, ‘This is the way it has to be,’” she says of the December 2005 incident. “I’m not sure how many people would have said, ‘Well, I don’t care.’ I don’t know what else he might have done.”

In January, the Romney campaign quoted Fox in an e-mail to supporters, saying, “Romney has had a consistent commitment to the culture of life” since he was elected as governor, without commenting on his other actions.

“The veto,” she says, “was a big thing.”

Katrina Trinko is an NRO reporter.

Katrina Trinko — Katrina Trinko is a political reporter for National Review. Trinko is also a member of USA TODAY’S Board of Contributors, and her work has been published in various media outlets ...

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