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A Project of The Annenberg Public Policy Center

FactChecking the Colorado Senate Race

Colorado’s Senate race pits Democratic freshman Sen. Mark Udall against Republican Rep. Cory Gardner, who is in his second term in the House.

The advertising battle has largely focused on women’s issues, including birth control and abortion. As a late September Denver Post article noted, if the race were a movie, “the set would be a gynecologist’s office.”

The focus is at least partly due to an anti-abortion “personhood” initiative that’s once again on the ballot in Colorado after having been defeated twice previously. Gardner announced in March that he no longer supported the state measure, because it could, as opponents have said, lead to a ban on some forms of birth control. Ever since, the Udall campaign has released ad after ad on the issue, and Gardner kept the birth-control theme going when he called for the sale of birth control pills over-the-counter without a prescription.

Beyond confusing, and misleading, contraception claims, we’ve fact-checked third-party ads attacking Udall on the Affordable Care Act and energy. Here are our findings so far in this toss-up race.


Claim: Gardner embarked on an “eight-year crusade that would ban birth control.”

Facts: Gardner supported anti-abortion measures that don’t explicitly call for a ban on birth control but could lead to some forms of birth control being illegal.

The claim, made in numerous ads by the Udall campaign, refers to Gardner’s support for past personhood initiatives in Colorado, which defined a person as “any human being from the moment of fertilization,” or the “beginning of the biological development.” Gardner supported these measures in 2008 and 2010 and said on a 2006 questionnaire for Colorado Right to Life that he would support a federal personhood bill.

senatebattleA personhood measure is again on the ballot in Colorado this November. However, Gardner has withdrawn his support, saying that he now agrees that the personhood measure “can ban common forms of contraception.” He remains, though, a co-sponsor of the federal Life at Conception Act, which similarly defines “human person” from the “moment of fertilization.”

These measures don’t explicitly ban common birth control methods. Some hormonal forms of birth control, including the pill and intrauterine devices, prevent ovulation but can also prevent a fertilized egg from implanting in the uterus. That’s why these personhood measures — which say the rights afforded to a person would begin at the moment of fertilization — could lead to a ban on those forms of birth control, a matter that would likely be decided by the courts. In a 2012 statement opposing personhood amendments, the American Congress of Obstetricians and Gynecologists said “oral contraceptives, intrauterine devices (IUDs), and other forms of FDA-approved hormonal contraceptives could be banned in states that adopt ‘personhood’ measures.”

But the Udall campaign goes too far in saying that Gardner was on a crusade that “would ban birth control.” Not all birth control could be affected, and the ad doesn’t note that Gardner has now changed his mind and doesn’t support the state initiative.

Full story:A Fight Over Birth Control in Colorado,” Aug. 15


Claim: The federal Life at Conception Act, which Gardner co-sponsored, wouldn’t affect birth control.

Facts: While Gardner says the Colorado personhood initiatives could “ban common forms of contraception,” he maintains that the federal bill couldn’t have the same effect. But the measures include the same language about giving the rights of a person to a fertilized egg.

Gardner announced his change of position in Colorado eight months after he signed on as a co-sponsor to the federal Life at Conception Act, which would extend “equal protection for the right to life” under the 14th Amendment to the “preborn” from the “moment of fertilization.” That language is exactly what raises the question of what such a measure would mean for some forms of birth control. Yet Gardner’s campaign told us he was not withdrawing his support for the federal legislation. Spokesman Alex Siciliano told us by email: “The federal proposal in question simply states that life begins at conception, as most pro-life Americans believe, with no change to contraception laws.”

In a recent local TV interview, Gardner maintained that “there is no federal personhood bill.” But the Life at Conception Act explicitly defines the term “human person.” In fact, supporters of the bill in Congress describe it as a “personhood” measure. Sen. Rand Paul, who introduced the bill’s counterpart in the Senate, also says the legislation is aimed at establishing “personhood” for the unborn. The activist group Personhood USA calls Paul’s measure a “personhood bill.”

Jennifer Mason, a spokeswoman for the Yes on Amendment 67 Campaign, which supports the Colorado ballot measure, told Colorado public radio station KUNC: “[T]here’s no reason for [Gardner] to pull local support while he’s still 100 percent behind the federal amendment. It doesn’t make any sense.”

Full story:A Fight Over Birth Control in Colorado,” Aug. 15


Claim: Gardner is co-sponsoring a bill that “makes all abortions illegal, even in cases of rape and incest.”

Facts: This claim, made in a DSCC ad, is a debatable opinion, not a fact. The anti-abortion measure in question makes no mention of rape or incest, and it’s far from clear what its impact would be.

The ad takes another stab at Gardner’s co-sponsorship of the Life at Conception Act. The National Pro-Life Alliance argues that this bill would “dismantle” the Roe v. Wade decision, because the majority opinion in Roe v. Wade said that if a fetus can be considered a “person” under the Constitution, “the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”

Even if that turns out to be accurate, that still falls short of necessarily making “all” abortions illegal “even in cases of rape or incest.” Sen. Paul, the leading sponsor on the related (and almost identical) Senate bill, has refused to make that claim. He was asked on CNN whether he “would have no exceptions for rape, incest, the life of the mother.” He said, “What I would say is that there are thousands of exceptions. I’m a physician and every individual case is going to be different.” A spokesman for Paul later tried to clarify that, telling an anti-abortion news website that Paul was trying to say that “a singular exception to save the life of the mother would likely cover thousands of individual cases.”

So, we find that the ad goes too far in claiming Gardner’s bill would “make all abortions illegal,” without exception.

Full story:Abortion Distortions 2014,” Sept. 26


Claim: Gardner’s plan to make birth control pills over-the-counter would be “cheaper and easier for you.”

Facts: It’s unclear whether birth control pills would be “cheaper” if they were available over-the-counter without a prescription, a plan Gardner touts in a campaign ad. The available research is mixed, and it’s not specifically about the pill.

A 2012 study funded by the Consumer Healthcare Products Association, a trade group for manufacturers of over-the-counter drugs, said there were savings from having common ailment drugs over-the-counter and that most of the savings came from not needing an office visit to get a prescription. The Oral Contraceptives OTC Working Group, which was established in 2004 to explore this issue, cites both a 2002 study that found out-of-pocket costs for consumers went up when certain drugs moved from prescription to OTC status, and research from 2005 that found out-of-pocket costs decreased for other drugs.

“It’s very unclear what would happen to the price of an oral contraceptive if it went over the counter,” said Sneha Barot, senior public policy associate at the Guttmacher Institute. She told us the cost of emergency contraception — which is essentially a high dose of the birth control pill — went up a bit when it became available without a prescription.

OTC pills would not be cheaper for women with most private insurance coverage, who — under the Affordable Care Act — get full coverage of the pill (and other forms of female contraception), with no cost-sharing, and fully covered annual “well-woman” office visits during which they can get a prescription. As for getting the pill over-the-counter being “easier,” that, too, depends on the person. If the cost were covered through a reimbursement system, as Gardner proposes, women would have to take whatever steps were required to get their money back. Women in rural areas, as Gardner pointed out in an op-ed on this topic, may drive long distances to see a doctor and would likely find an OTC option easier.

Lastly, Gardner’s proposal couldn’t be authorized by an act of Congress. Instead, a drug manufacturer would submit an application to the FDA, and the FDA would then have to review and approve it.

Full story: “Colorado’s Contraception Controversy,” Sept. 16


Claim: Gardner wants to “take away” insurance coverage for birth control pills and have “women pay for all of it.”

Facts: Gardner hasn’t called for any kind of ban on insurance coverage of the pill, or birth control in general.

A Planned Parenthood Votes ad claims that Gardner’s plan would “take away” coverage for the pill, with an on-screen graphic that reads, “Gardner’s plan: Women pay for all of it.” The Udall campaign, too, has criticized Gardner’s OTC proposal by saying on its website that he had a “radical position on ending insurance coverage for the pill.”

Gardner’s campaign says he wants to allow women to be reimbursed by their insurance for over-the-counter oral contraceptives. He hasn’t provided more specific details on how his plan would work, but that’s still no reason for Planned Parenthood Votes to misrepresent his proposal.

Even if the ACA were repealed (which Gardner does want), many insurers may still cover some of the cost of prescription contraceptives, as they did before the ACA. (In fact, Colorado, like the majority of states, requires insurance plans that include prescription drug coverage to cover contraception. Gardner voted against his state’s contraception coverage bill in 2010.)

Full story: “Colorado’s Contraception Controversy,” Sept. 16


Claim: “Many Coloradans pay roughly 100% more for health insurance since Obamacare.”

Facts: To make this false claim, Crossroads GPS exaggerates a few personal anecdotes about resort area residents’ premiums on the individual market, where only about 7 percent of Coloradans get insurance. Also, the total population of the resort area counties is just 3 percent of the state’s 5 million residents.

While the announcer in the ad claims that “many” Coloradans had faced such an increase, an on-screen graphic reads: “resort area residents paying roughly 100 percent more for health insurance.” That’s a truncated quote from the Aspen Daily News, which said “some resort area residents,” not “many” were paying that much more. The story gave two personal anecdotes of a couple who say they’re paying about double and a woman who says she’s paying 66 percent more since the Affordable Care Act.

Resort area residents faced higher health care costs before the ACA. It’s unclear whether the law caused an overall increase in the individual market premiums.

Comparing pre- and post-ACA premiums on the individual market is difficult, if not impossible because of the law’s regulations on coverage requirements and how insurers can and can’t vary premiums.

Full story: “A Game of Telephone in Colorado,” Sept. 5


Claim: “On the eastern plains, patients now outnumber doctors five thousand to one.”

Facts: Crossroads GPS uses a statistic from a study conducted before the major provisions of the ACA were implemented to imply that the law caused a shortage of doctors in rural areas.

The data is from a 2013 study by the Colorado Health Institute, and it’s the first time such a study was conducted. The Crossroads ad says this is “now” the case, as if there’s been a change, but we don’t know what the situation was in the past. The Health Institute’s Amy Downs confirmed that the study wasn’t blaming the ACA for the problem. “Because the analysis was conducted prior to the launch of the major insurance reforms in the ACA, we don’t attribute the Affordable Care Act as a reason why there are few primary care physicians on the eastern plains,” she said in an email to FactCheck.org.

The study gives several other reasons for the challenging situation — fewer physicians choosing to be primary care physicians, an aging population that needs more care, and doctors who are also aging and retiring.

Full story: “A Game of Telephone in Colorado,” Sept. 5


Claim: A Colorado woman “had to go back to work” to pay for ACA-mandated insurance.

Facts: Another ad from Crossroads GPS leaves the false impression that a Colorado woman “had to go back to work” to pay for health care insurance mandated by the Affordable Care Act. She told a local TV station that her decision to get a job had nothing to do with the health care law.

In the ad, Richelle McKim of Castle Rock, Colorado, talks about the expense to her and her husband of buying health insurance. “We knew that we needed to find health care,” she says. “Because we were a single-income family, we couldn’t afford our plan.” Meanwhile, the on-screen text reads: “Richelle had to go back to work.” The impression left by the ad’s deceptive framing is that she had to go back to work in order to afford a health care policy on Connect for Health Colorado, the state website created under the Affordable Care Act to purchase nongroup insurance policies. That’s not what happened.

Richelle worked for her husband’s company, Mission Basement, from July 2008 to May 2010. Her LinkedIn page, which has since been removed from the site, says that she left to work at Anadarko Petroleum in May 2010 — more than three years before the ACA’s individual mandate took effect. Richelle then told KDVR that “it wasn’t the Affordable Care Act” that influenced her decision to go back to work.

Full story: “Crossroads GPS’ Twisted Tale,” Aug. 12


Claim: Udall “voted to enact a carbon tax.”

Facts: Udall voted to support making a hypothetical tax revenue neutral, and the resolution did not carry the force of law. Congress has never voted to enact a specific carbon tax proposal.

The Crossroads GPS ad making this claim points to Udall’s March 22, 2013, vote for a nonbinding budget resolution amendment to require any possible future carbon tax to be revenue neutral, with the money the government would receive from the tax being returned to the American people. Crossroads could accurately have said that Udall supports revenue neutrality in the case that a carbon tax is ever enacted, but that wouldn’t make for a very powerful attack.

A carbon tax is a direct tax on the carbon content of fossil-fuel energy, such as coal, oil and gas. The idea faces much political opposition.

The ad goes on to wrongly say that Udall voted for a carbon tax proposal that “could have led to higher electricity prices, squeezing middle-class budgets,” vaguely adding: “A carbon tax could squeeze local businesses and hurt Colorado employment.” The Congressional Budget Office says that such a tax could do those things, depending on how it was structured and how the revenues were used. But, again, Udall didn’t vote on a specific proposal.

Full story: “More Carbon Tax Distortions,” July 24


Claim: Udall “voted to take away your gun rights.”

Facts: He’s not against people owning guns or using them in self-defense in their homes, despite what an ominous NRA ad implies.

The ad shows a woman home alone with her baby as an intruder breaks through the front door. It says, “How you defend yourself is up to you,” adding: “But Mark Udall voted to take away your gun rights. Vote like your safety depends on it.” The NRA stretches Udall’s record to make that claim, citing his support for expanded background checks at gun shows and over the Internet, and legislation to regulate large capacity ammunition feeding devices. On the same day as those votes, Udall also voted against an assault weapons ban and in favor of cross-state reciprocity for the carrying of concealed firearms.

He didn’t support policies that might prevent homeowners from being able to protect themselves against a violent intruder, as the ad suggests.

Full story: “NRA’s Ominous But Misleading Appeal,” Oct. 3

– The Staff of FactCheck.org