I wouldn’t be the first to question the judgment of New York Times’ former Supreme Court reporter, Linda Greenhouse. That’s already been done by National Public Radio, the New York Times’ public editor Byron Calame, and a member of the executive committee of the Pulitzer Prize Board, on account of Ms. Greenhouse’s penchant for bouts of very public, very raw, and quite emotional political partisanship, even while she was a “hard news” reporter for the Times. Now, as an “opinionator,” she’s grown worse.

But in my capacity as Chair of the Task Force on Conscience Protection at the Witherspoon Institute, I will join the chorus.

In a piece for the October 5 New York Times Opinionator titled “Refused and Confused,” Ms. Greenhouse attacked the Witherspoon Institute’s Task Force on Conscience Protection for its recent statement against narrow religious exemption clause of a mandate of the Department of Health and Human Services (HHS). The mandate requires nearly all health insurance plans not only to cover contraceptives, sterilization, and some drugs acting as early abortifacients, but also to do so without any co-pays.

Greenhouse’s framework is illuminating: She conceives of healthcare as, first and foremost, the purview of government. Healthcare dispensers, therefore, are all “public health workers,” who really have no choice but to do what the state commands. Analogizing all medical providers to state officials, she approvingly quotes New York Governor Andrew Cuomo’s dismissive response to a state clerk who conscientiously objected to facilitating same-sex marriage: “When you enforce the laws of the state, you don’t get to pick and choose.” This should frighten not only all healthcare providers and institutions founded upon or guided by religious or ethical principles, but also every citizen who wishes to find a doctor or institution that is motivated first and foremost by respect for all human life, to provide his or her personal healthcare.

In her haste to condemn those who would threaten her view of progress (which most certainly encompasses what she calls the “sexual revolution”), Ms. Greenhouse also gets a few things wrong. Some of her factual errors are small, like the name of the group hired to “advise” HHS about the contents of “preventive services” for women; but some of her errors touch on crucial matters, like the number of states with similarly narrow conscience clauses. As to the latter, Greenhouse opines that “the administration’s rule simply mirrors the policies of many states, and represents no significant departure.” The truth, however, is that only three states, California, New York, and Oregon, have drafted religious exemptions similar to the HHS exemption, so as to exclude the maximum number of religious institutions from conscience protection. Indeed, no state’s contraceptive mandate is as sweeping as the proposed HHS rule, because none applies to all plans and includes both so-called “emergency contraceptives” and sterilization. (A memorandum from the U.S. Conference of Catholic Bishops’ General Counsel to HHS revealingly details the law of each and every state on this subject.)

Ms. Greenhouse also refuses to admit that drugs marketed as “morning-after pills” or “emergency contraception” can act to destroy fully formed human embryos, and are thus more truthfully called “abortifacients.” According to FDA-approved label for one such drug called ella, not only is “use of ella … contraindicated during an existing or suspected pregnancy,” but while the “likely primary mechanism of action … is … inhibition or delay of ovulation … alterations to the endometrium that may affect implantation may also contribute to efficacy.” In lay terminology, ella may prevent the union of sperm and egg, but it may also render the lining of a woman’s womb hostile to the implantation and nurturing of the now-formed human embryo.

At the very least, reasonable feminists ought to find themselves in agreement with Germaine Greer, who opined in her book The Whole Woman:

These days, contraception is abortion, because the third-generation Pills cannot be shown to prevent sperm fertilising an ovum. …. Whether you feel that the creation and wastage of so many embryos is an important issue or not, you must see that the cynical deception of millions of women by selling abortifacients as if they were contraceptives is incompatible with the respect due to women as human beings.

Ms. Greenhouse’s opinion that emergency contraception does not pose any threat to developing embryonic humans is not based in fact and, as Greer’s position illuminates, does a disservice to women.

Ms. Greenhouse saved her most withering critique for the Witherspoon Institute’s Task Force, which dared to question the wisdom of the federal government’s stepped-up birth-control campaign. Ms. Greenhouse writes:

The Witherspoon Institute, a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J., has numerous objections to what it calls “the radical nature of this looming invasion of religion liberty.”

… The deeper objection emerges from the final paragraph of the Witherspoon task force’s four-page statement: the real problem turns out to be “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, an objection to birth control as affirmative federal policy. In the year 2011, with half of all pregnancies unintended and with countless tears, both crocodile and sincere, shed over the fact that nearly half of those end in abortion, we are still, amazingly, re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Needless to say, the Witherspoon Institute is happy to accept Greenhouse’s compliments about our “leading role” and “intellectual” character. We would, however, have to decline political labels, as our scholars come from a variety of political backgrounds, and devote themselves strictly to exploring the moral foundations of free and democratic societies, and to seeking solutions to contemporary problems through a variety of research and educational ventures. We pay a great deal of attention to data and reasoned argument, and not to political positions.

The data relevant to the relationship between the federal government’s birth control programs and rates of nonmarital births are straightforward: Since the federal government began its aggressive campaign to provide free or low-cost birth control to millions of Americans in 1970 (with the “National Family Planning Program,” known as Title X of the Public Health Service Act), rates of nonmarital births have grown, not declined. In 1970, the number of unmarried births per 1000 women of childbearing age was 26; in 1980, it was 29; in 1990, it was 44; in 2005, 47; and in 2008, 52.5.

The Department of Health and Human Services summarized the data between 1960 and 2000 as follows: “Nonmarital births as a percent of all births have increased among teens of all ages and across all racial and ethnic groups since 1960. … and among women of all ages.” Rates were 5.3% in 1960, 11% in 1970, 18% in 1980, 28% in 1990, and 33% in 1999. Today, nonmarital births are at an all-time historic high of 41%. These rates persist, while the availability of birth control has expanded exponentially among women of reproductive age. According to the Centers for Disease Control, for example, as of 2004, 89% of sexually active women of reproductive age who are “at risk” of becoming pregnant use contraception, and 98% have used it in their lifetime.

It is tempting to sympathize with those who assumed that birth control adopted as a massive government policy would work in the same way as an individual decision to use birth control—to prevent pregnancy. It is even possible that those taking this view genuinely hoped to lower our nation’s high abortion rates. In the end, however, such a view relied on the false presumption that if you “take the baby out of sex,” you don’t change the incentives in the sex and mating markets. Of course these change. The leading economics paper on the subject, authored by Nobel Prize-winning economist George Ackerlof, with Janet Yellen and Michael Katz, concludes:

In the old world, before the sexual revolution, women were less free to choose, but men were expected to assume responsibility for their welfare, an expectation that was more often fulfilled than breached. Nowadays women are freer to choose, but men are affording themselves the comparable option. In the model we present, the man reasons: “If she is not willing to obtain an abortion or use contraception, why should I sacrifice myself to get married?” This model accurately predicts a decline in shotgun marriage: with abortion readily available, many relationships that previously ended in shotgun marriages now end in abortion. When, instead, the woman carries the baby to term, the man can also rationalize remaining single. The model also realistically predicts a decline in the fertility rate (see Wilson and Neckerman [1986]) and an increase in the out-of-wedlock birthrate.

Greenhouse need not fear that the Witherspoon Institute, or others who question further government emphasis on birth control, are seeking to turn back the clock on women’s marvelous progress over the last half-century. This is emphatically not the case. But as for highlighting the faulty premises and poor outcomes of “birth control as preventive medicine”—let the dialogue begin. Whatever the founders of this policy first believed or hoped for, it is time to look at the evidence. A new approach is needed, not a doubling down on failure under the guise of “preventive medicine.”


Helen Alvaré is an associate professor at George Mason University School of Law and a Senior Fellow of the Witherspoon Institute.

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