"I’ve never supported legislation that invades people’s choices about contraception."

Ken Cuccinelli on Tuesday, August 27th, 2013 in a news conference.

Cuccinelli says he never backed legislation that limits contraception choices

Republican gubernatorial candidate Ken Cuccinelli is combating accusations that he’s tried to restrict the types of birth control Virginians could use.

"I’ve never supported legislation that invades people’s choices about contraception," Cuccinelli told reporters on Aug. 27 while campaigning in Northern Virginia. His comment was reported by The Washington Post and The Loudoun Times.

Cuccinelli made a similar comment during a July 20 debate with Democrat Terry McAuliffe when he was asked by moderator Judy Woodruff, "Would you again seek to make several forms of contraception illegal as you did several years ago?"

"Well, I certainly didn’t do that several years ago," Cuccinelli replied.

We examined Cuccinelli’s claim. At issue is his support of support of two "personhood" bills that sought to provide human embryos with legal rights. Both bills died in the General Assembly.

Supporters say personhood laws provide a legal remedy to parents if an unborn child is killed by the negligent or criminal act of a third party. Opponents say the measures are a ruse to challenge abortion and contraception rights.

In 2007, Cuccinelli as a state senator co-sponsored legislation that would have given pre-born humans the "right to the enjoyment of life" from the moment fertilization. Critics, including McAuliffe, say the bill would have outlawed birth control pills and other forms of contraception that prevent a fertilized egg from implanting in a uterus.

As attorney general, Cuccinelli last year spoke at a rally for a similar bill that would have extended to human embryos and fetuses, from the moment of conception, "all the rights available to others living in Virginia."

Anna Nix, a spokeswoman for Cuccinelli’s campaign, said her boss’s statements are accurate because the legislation he backed simply "defined life and had no language or reference to any form of contraception or any access to contraception."

Nix added in a follow-up email that Cuccinelli "does not believe the government should regulate contraception and supported this legislation because he is pro-life, and this bill would protect innocent life."

The debate on personhood’s effect on contraception centers on how various forms of birth control work. No one disputes that condoms and other forms of birth control that merely prevent fertilization would unaffected by a measure to provide legal rights to preborn children.

But various forms of FDA-approved contraception can also work to prevent the implantation of fertilized egg in the uterus. For example, although birth control pills mainly work to prevent fertilization by preventing the release of an egg, they can also make the lining of the uterus inhospitable to implantation after its fertilized, according to WebMD.

Emergency contraceptives if taken soon after intercourse can prevent the release of an egg to prevent fertilization. But if taken later, they can prevent the implantation of an egg.

Some abortion opponents believe life begins at the moment of fertilization and consider anything that prevents a fertilized egg from attaching to the uterus as tantamount to producing an abortion. That’s sparked concerns from supporters of contraceptive access that conveying rights to human eggs from the moment of fertilization could open the door to limiting birth control products that can prevent affect implantation.

Nix, in her statement, did not spell out exactly how Cuccinelli defines "contraception." We asked if he includes in his definition any method that prevents implantation of a fertilized egg, but didn’t get a clear response.

"The pharmaceutical structure for contraception is one that changes with ongoing medical research," Nix said. "Ken Cuccinelli is not interested in legislating contraception."

We should note that as a state senator back in 2003, Cuccinelli voted against a Democratic measure that would have specified contraception does not constitute abortion. The bill, which passed the Senate but died in the House, defined contraception as methods that block fertilization or prevent implantation of a fertilized egg in the uterus.

The American Congress of Obstetricians and Gynecologists weighed in on that debate last year warning that personhood laws being considered around the nation saying it threatened certain forms of contraception.

"Although the individual wording in these proposed measures varies from state to state, they all attempt to give full legal rights to a fertilized egg by defining `personhood’ from the moment of fertilization before conception (ie. pregnancy/implantation) has occurred," ACOG wrote.   

That would make condoms, spermicides and natural family planning "the only legally allowed forms of birth control," the group said. In other words, the doctors said that only birth control devices that prevent sperm from joining an egg would remain legal.

"Thus, some of the most effective and reliable forms of contraception, such as oral contraceptives, intrauterine devices (IUDs) and other forms of FDA-approved hormonal contraceptives could be banned in states that adopt ‘personhood’ measures," ACOG said.

Three days after ACOG’s statement, the Virginia’s 2012 personhood bill was approved by the Republican-led House on an almost straight party line vote. Democrats unsuccessfully offered an amendment that specified the legislation "shall not be interpreted as affecting lawful contraception."

Two days later -- on Feb. 15, 2012 -- Cuccinelli endorsed the bill at rally on the Capitol grounds, although news stories contain no mention addressing contraception in his speech. The bill, however, died in the Senate.

Both the 2012 and the 2007 measures may not have survived legal challenge even if they had passed.  A.E. Dick Howard, a University of Virginia constitutional law professor, pointed out to us that the U.S. Supreme Court in 1972 ruled that couples have a right of access to contraception.

Our ruling

Cuccinelli, in a carefully-worded statement, says he’s never supported legislation that "invades people’s choices about contraception."

While he’s never cast a vote on legislation that explicitly restricted birth control options, Cuccinelli for a decade has been one of the strongest anti-abortion voices in Virginia. He’s supported personhood bills that recognized life as beginning at the moment of conception or fertilization and bestowed human embryos with legal rights. The American College of Obstetricians and Gynecologists says such legislation could outlaw birth control pills and other forms of contraception that prevent a fertilized egg from implanting in a uterus.

Cuccinelli’s wording also allows him to gloss over a vote he cast in 2003 against legislation that would have specified contraception does not constitute an abortion.

So Cuccinelli’s claim has some accuracy, but omits his consistent support of bills that would have opened or protected legal avenues to challenge the use of certain contraceptives. We rate his statement Half True.