Mark Udall ad says Cory Gardner 'championed' Colorado fight to ban birth control

Women, particularly single women, voted strongly for President Barack Obama and other Democrats in 2012. Hoping to replicate that success, Democrats this year are hammering Republicans on women’s health issues in the early stages of the 2014 midterm campaign season.

A good example is Colorado, where Democratic Sen. Mark Udall is expected to face Rep. Cory Gardner, R-Colo., in November. Udall recently released a 30-second ad attacking Gardner on abortion and birth control.

"Congressman Cory Gardner’s history promoting harsh anti-abortion laws is disturbing," the narrator says. "Gardner sponsored a bill to make abortion a felony, including cases of rape and incest. Gardner even championed an eight-year crusade to outlaw birth control here in Colorado."

Udall’s campaign said Gardner’s "crusade to outlaw birth control" stems from his support of efforts to add so-called "personhood" language that would define life beginning at fertilization to the Colorado Constitution.

Opponents of personhood legislation say that giving a fertilized egg all the rights of person could make illegal several FDA-approved contraceptives. (More on that in a bit.) Anti-abortion groups successfully petitioned to get personhood measures on the Colorado ballot in 2008 and 2010. Both times it was rejected by more than 70 percent of voters.

In a further complication, Gardner recently made a major about-face, saying he no longer supports the personhood movement, partly because he now thinks it could potentially impact access to certain forms of birth control.

"The fact that it restricts contraception, it was not the right position," Gardner told The Denver Post. "I've learned to listen. I don't get everything right the first time."

Despite this, Gardner’s camp still contends Udall’s ad is misleading because Gardner thought he was supporting an anti-abortion measure, not a referendum on birth control. Gardner’s campaign argues that it’s an exaggeration of his position to claim that he’s "championed" a "crusade to outlaw birth control."

What are we to make of this?

We can’t predict how the courts would interpret personhood legislation or its impact on legal birth control. Though even Gardner acknowledges that some contraceptives could be at risk if personhood passed, a lot of legal ambiguity remains. Because no state has passed a personhood measure, we don’t know how it could impact specific types of contraceptives.

As we’ve noted in past articles about the debate over personhood, some legal scholars and the medical community have cautioned that it could potentially impact access to birth control.

In a 2011 op-ed to the New York Times, Glenn Cohen, co-director of the Center for Health Law Policy, Biotechnology and Bioethics at Harvard University, and Jonathan Will, law professor at Mississippi College, said what is considered "fertilization" is not even clear.

Fertilization could mean at least four different things: "penetration of the egg by a sperm," successful combination of the genetic information from sperm and egg, activation of the genetic information, and "implantation of the embryo in the uterus," Cohen and Will wrote.

Sperm penetration occurs almost immediately, but implantation can take up to two weeks. "Thus, on some reasonable readings of the amendment, certain forms of birth control ... would seem impermissible, while on other equally reasonable readings they are not."

Therefore, it is difficult to know how courts would react, especially considering that past rulings have affirmed the right of access to birth control. A personhood law could present proponents an opportunity to challenge those rulings.

So we’re left trying to determine whether Gardner’s past positions in support of personhood could reasonably be considered as championing a crusade against birth control.

Gardner’s history

In 2006, Colorado Right to Life asked all politicians running for office if they supported the Right to Life Act in Congress, "recognizing that personhood begins at fertilization." Gardner, then a first-term state representative answered yes.

Udall’s campaign provided a television news story from March 17, 2008, that appears to briefly show Gardner in a room with several Republican colleagues signing on to the petition to put personhood on the Colorado ballot (around the 1-minute mark).

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Gardner’s campaign did not respond to questions about his support of the 2008 referendum. His campaign did, however, acknowledge that Gardner supported the referendum efforts in 2010 at a candidate forum.

In a video clip from the forum, Gardner says he signed the petition and circulated it at his church. He also said the measure "backs up my support for life," but did not mention contraceptives or birth control.

News stories from Colorado papers in 2008 and 2010 mention the debate over contraceptives involved in personhood legislation. In fact, Ken Buck, the 2010 Republican candidate for U.S. Senate in Colorado, backed away from his previous support of the personhood referendum because he said it could impact some forms of birth control. So contraception was a live issue at the time.

But Cohen, the Harvard professor, told PolitiFact that "it is unclear that the Colorado 2008 and 2010 referendums were intended to ‘outlaw birth control in Colorado’ — that's what the word ‘crusade’ seems to imply. It is more clear that the language of those amendments might have outlawed some forms of birth control, whether that was the goal or not."

In other words, Gardner may have been in favor of the amendment, but for reasons other than curbing contraception.

Since getting elected to Congress in 2010, Gardner has co-sponsored the Life Begins at Conception Act in 2012 and 2013, which has been described as federal personhood legislation. But he was hardly alone in doing so, nor was he an early backer. In 2012, he was one of the final cosponsors of 120 lawmakers, joining a full 14 months after the bill was introduced. In 2013, the bill had 128 sponsors, with Gardner signing on four months after introduction.

Gardner’s campaign notes that in 2007, he was one of five to cosponsor an anti-abortion measure in Colorado that specified that "nothing in this section shall prohibit the sale, use, prescription or administration of a contraceptive measure, device, drug or chemical." This bill, his campaign said, demonstrates that while Gardner is pro-life, he is not anti-contraceptive.

Udall’s campaign, though, noted Gardner also voted against the "Birth Control Protection Act" in 2009, a response to the 2008 personhood ballot referendum, which became law.

Our ruling

Udall’s ad said Gardner "championed an eight-year crusade to outlaw birth control here in Colorado." It’s clear Gardner has supported personhood in the past, and it’s hard for him to claim ignorance about the measure’s threat to contraception, given the media attention that aspect of the law attracted at the time. Gardner also voted against a bill that would have legally protected birth control.

Still, the effort is probably more accurately described as a crusade against abortion than against birth control, and "championed" is also a strong word to describe Gardner’s role, since it implies that he was a leader in the cause.

Udall’s ad is partially accurate but leaves out important details. We rate it Half True.