Pregnancy, HIV, and Sexual Morality: GOP Lamaker's Statement Causes Flap in Colorado , But Both Sides Are Being Hypocrites

Here's another "bah humbug" moment, courtesy of Dissenting Justice. Colorado lawmakers are considering proposed legislation that would require doctors to conduct HIV testing of all pregnant women. A woman could decline to submit to the test, but doctors would have to record her refusal in her medical records. The child's birth certificate would also state whether or not the mother submitted to the HIV test. The Colorado Senate website has a draft of the bill (note: the "marked up" document shows all of the edits to the bill).

Republican Senator Refuses to Help Promiscuous Women
Yesterday, the Colorado Senate passed the measure by a vote of 32-1. Despite the bipartisan support for the measure, a Republican senator's comments sparked partisan flames. Senator David Shultheis opposes the measure on the grounds that it would benefit "promiscuous" women:

"This stems from sexual promiscuity for the most part, and I just can't go there . . . ."

"We do things continually to remove the consequences of poor behavior, unacceptable behavior, quite frankly. I'm not convinced that part of the role of government should be to protect individuals from the negative consequences of their actions."

Earlier this week, another Republican state senator, Scott Renfroe, invoked the Bible and attempted to link "homosexuality" with murder during a debate on the extension of health benefits for the partners of gay and lesbian state workers. Together, the comments of Shultheis and Renfroe caused some Democrats to question Republican "leadership," even though the Senate Minority Leader, a Republican, co-sponsored the HIV-testing bill.

Some Democrats have also argued that individuals who are "pro-life" must support the bill in order to remain logically consistent. Former Governor Bill Owens, for example, argues that: "It's extremely inconsistent for any person who is pro-life to oppose this effort to potentially save the life of a child. . . ."

My Take: Both Sides Are Switching Sides a Bit
Let me state the obvious before continuing. I strongly disagree with Shultheis' position. Promiscuity is not the sole cause of HIV, and even if it were, this does not discredit the policy behind the legislation -- to provide appropriate medical care to pregnant women in order to prevent the transmission of HIV to their unborn children.

The Bill Places Fetal Health Above the Woman's Privacy
Despite my opposition to Shultheis, I disagree with the notion that only pro-lifers are switching sides. Pro-choice advocates (myself included) justify the right to an abortion on the grounds that the state should not inject itself into a woman's decisions related to her pregnancy, including whether or not she will terminate it. The woman's privacy interest is so strong that it defeats the state's interest in potential life until the moment of viability. And even after viability, abortion must remain available if it is necessary to protect the life or health of the mother. In sum, the right gives women a fairly strong liberty interest.

Liberals (and conservatives), however, support this measure which involves state regulation of medical decisions surrounding pregnancy. Although women have the right to decline testing, their medial records and their children's birth certificates will indicate whatever choice they make. Placing the decision in a woman's medical records will make it available for insurance companies as well. This contradicts the abortion rights discourse which places a premium on privacy and autonomy over pregnancy-related medical decisions.

The Bill Erodes the Privacy of HIV/AIDS Patients
Furthermore, progressives have always frowned upon mandatory HIV testing and have advocated anonymous testing upon request. The bill provides for mandatory testing - with a potentially weak escape hatch - but it does not offer anonymous testing. Pro-choice politicians have decided to compromise the autonomy of pregnant women in order to protect the health of potential life -- a position that conflicts with the reasoning of Roe v Wade (a decision I strongly support).

At least one liberal blogger has framed the issue the way I have. Ari Armstrong, of the blog Free Colorado, agrees that this legislation rests on logic that could undermine pro-choice arguments:

In recent years, Republicans opposed to abortion have been most interested in politically managing pregnancy care, as by trying to require ultrasounds prior to an abortion. . . .

If the state legislature "encourages" women to be tested for HIV, for the purported sake of the fetus, legislators open the door to future efforts to politically control medicine to restrict abortions. Leftists who endorse 179 while wanting to keep abortion legal are incapable of thinking in principle or seeing more than a few months down the legislative road.

Solution: Protecting Life Without Eroding Privacy
The incidence of pregnancy-related HIV transmission is extremely small. But if the state wants to lessen the rate (which is a valid goal), it should do so in a way that does not deprive women of privacy surrounding their test results. Recording the woman's decision on her child's birth certificate and medical records seems unnecessary and too great a restraint on privacy.

If the state, however, believes that the issue is so compelling that it should intrude upon the rights of pregnant women, liberals need to accept that they are compromising the liberty of pregnant women in order to promote a broader health policy agenda. Ultimately, liberals (and others) who support the bill might have the better argument. Nevertheless, when liberals only emphasize the potential health benefits to the fetus, they distort the reality that women will lose autonomy if the bill becomes a law. Finally, when liberals defend the proposed legislation by focusing exclusively on the the health of potential life, their arguments sound exactly like the rhetoric pro-lifers use when they oppose abortion.