Civil Justice Memo
No. 3 September 1987
Judge Bork, Contraceptives, and Liability Reform
by Walter K. Olson
The Bork hearings have focused public attention on an unlikely issue: the legal status of birth control. The debate has taken an oddly antiquarian turn, however, with senators dwelling interminably on the Supreme Court's decision, back in the 1965 case of Griswold v. Connecticut, to strike down a state law banning contraceptives. (Bork finds that law "nutty", but doesn't think it violates a general Constitutional right of privacy.) No one seems to care that over the past twenty years the two sides have completely reversed themselves. Connecticut and other state governments, mindful of AIDS and teen pregnancy, have, if anything, become avid promoters of contraceptive use. Meanwhile, the chief threat to contraceptive choice is now none other than the progressive courts themselves, which have been knocking off one form of birth control after another in liability suits.
Even before AIDS made condoms respectable, state officials had been coming to appreciate the benefits of contraception, if only, because they pay many of the costs of unwanted pregnancies. At the same time, as Peter Huber of the Manhattan Institute has noted, the courts were discovering to their horror that birth control has its costs as well—that all forms of contraception have their side effects and failures. Under new concepts of product liability, they have been awarding huge judgments to compensate victims of injury or "wrongful birth," even when there was no negligence in the conventional sense. No major method of birth control—the Pill, the IUD, "barrier" methods—has been immune.
Manufacturers can't afford to serve as lastresort insurers of contraceptive failure, especially since there is a high natural incidence of the medical problems that plaintiffs and juries often ascribe to contraceptive use: strokes, heart attacks, birth defects, miscarriages, sterility, and so on. So they have withdrawn all but one minor brand of IUD from the market, and almost entirely suspended U.S. research on new contraceptive products. (Hence the common wisecrack about the alliance between the Roman Catholic church and the trial lawyers.) Liability fears will also probably keep the new "morningafter" pill from reaching American women. Condoms are not foolproof either, and if even one in ten million sold leads to a wrongfuldeath AIDS verdict, their price will rise out of the reach of many users, with incalculable consequences for public health.
As always, there is a broader lesson to keep in mind. Widespread access to contraception, like all social advances, has an economic dimension. Just as press freedom depends on economic entities like newspapers and magazines that can be silenced by punitive libel verdicts, so contraception depends on a network of drug makers, prescribing doctors, and clinics who can readily be scared off by milliondollar awards and the insurance rates that go with them. These businesses, like businesses in general, can hardly operate in an environment where legal obligations are unknowable and informed consent meaningless, or where producers are potentially liable for all the misfortunes of their customers' lives. It does little good for one court to enshrine a constitutional right if another court can take away the livelihoods of the people who provide it in practice.
That is why senators who want to keep birth control legal should be calling for judicial restraint, not judicial activism. They have very little to fear these days from state legislatures, but a great deal to fear from courts that write their preferences into law. The single most effective way to ensure public access to contraception might be for courts to defer to the Food and Drug Administration in deciding whether a product is unsafe. Such deference to a more expert branch of government does not appeal to most current jurists, of course, but it might well appeal to a judge known for his skeptical views of judges' policymaking powers. So for those who want to fight today's battles instead of yesterday's, the slogan is paradoxical but simple. Keep birth control legal: confirm Judge Bork.