Balkinization: Pataki and the Morning After Pill

Pataki and the Morning After Pill

This New York Daily News story suggests that Governor Pataki will veto legislation allowing sales of the morning after pill without a prescription unless (1) men are prohibited from buying the pill, (2) girls under 16 may not purchase it, and (3) women who purchase it are limited in the numbers they can buy. Numbers 2 and 3 seem like acceptable compromises, although the story's description of demand number 3 is ambiguous: if Pataki means to limit the number of pills a woman can buy at one time, this might be reasonable under certain circumstances (there are privacy concerns about record keeping, for example), but not if he means to limit the number of pills a woman can ever buy.

However, Pataki's demand number 1, a ban on all sales to men, seems clearly unconstitutional. What theory justifies preventing men from buying a morning after pill that isn't based on stereotypical notions about male and female behavior and would survive constitutional scrutiny?

I invite comments on this question.

Posted 7:51 AM by JB [link]

Comments:

You have more or less guessed what I thought the Governor would say. And if so, it's pretty clearly unconstitutional under existing law. The argument assumes that men who purchase the pill are likely to be up to no good, while women who purchase the pill are not. But there are plenty of women who might purchase the pill for reasons that have nothing to do with their own pregnancies.

Consider as examples, a pregnant woman's mother who doesn't want her child to be pregnant and secretly places the pill in her child's food, a woman who is post-menopausal and therefore could not possibly be buying the pill to end her own pregnancy, or a woman who is herself several weeks or more pregnant and for whom the pill would do no good and might in fact do considerable harm.

The Supreme Court's sex equality jurisprudence does not allow the state to reason that if 5 percent of all males will do something bad if we let them but only 1 percent of all females will do something bad if we let them, we may ban the practice only for men. That's Craig v. Boren. Again, you will have to do better than argue that some percentage of men will misuse the drug, or even that more men than women are likely to.

Finally, the fact that only women can get pregnant does not save the proposed statute because many women who would be entitled to purchase the pill under the Pataki version of the law can't get pregnant either; Moreover, even for women who can get pregnant, there is no guarantee that the woman who purchases the pill is the same woman who ingests it.

# posted by

JB : 11:10 AM

I disagree with Chris. The rationale does rely on invidious stereotypes because it assumes that any male purchasing the pill is more likely to be doing so with malicious intent. I can imagine multiple scenarios where a male purchasing the pill would have no such intent.

First, the female partner could have a busy schedule whereas the male does not. The male could make the trip to the pharmacy as a convenience. Second, the female partner could be embarrassed in making such a purchase. This could be especially true if the woman was raped. The male partner (or trusted friend) making the purchase could, again, be doing so as a convenience on her behalf. Third, the male could be making the purchase to have it for a future event. Women frequently purchase and carry condoms to have readily available if their partner does not have his own. Similarly, a man could carry the pill to offer to his partner in the morning if she does not have one on hand.

I understand the desire to prevent the cases of misuse, but I don't believe restricting the purchase to women only accomplishes this. If a male has such an intent, he could simply steal the pill. I don't see that that the restriction based on gender is legitimate.

# posted by

Michael : 2:12 PM

mjh21,

This doesn't affect your argument, but it is the morning-after pill in question, which should not be confused with RU-486.

RU-486 is an abortifacent: it induces miscarriage if taken sufficiently early in pregnancy, and should for safety reasons be taken under a physician's supervision.

The morning-after pill is simply high doses of the hormones found in regular birth-control pills, and prevents implantation of a fertilized egg, and thus need to be taken with 72 hours after intercourse. It's very safe, and doesn't need a physician's supervision.

# posted by

Brock : 6:58 AM