We are less than two weeks away from oral argument in Supreme Court regarding the HHS Mandate.
The U.S. Department of Health and Human Services all along has claimed that the Contraception and Emergency Contraceptives Mandate (also known as abortifacient drugs) is all about women’s freedom and health.
In order, however, to get from point “A” (forcing “free” contraception and ECs coverage into all insurance policies) to point “B” (improved women’s health and freedom), you have to show quite a few things that HHS never shows. The following five points show not only how HHS fails in its essential argument, but how thoughtless and demeaning some of their additional arguments appear.
1. The HHS mandate is ineffective, even counterproductive.
a. The andate only affects employed women and the daughters of employed persons, who largely already have access to contraception. It is poor women who have the very high rates of unintended pregnancy and abortion that the mandate claims to target. The government already provides this latter group free contraception.
b. Increased access to contraceptives may drive unintended pregnancy and abortion up, not down.
Non-marital pregnancies, for example, increase in the long term when access to contraception increases, which studies suggest is due to “risk compensation” – the belief that one is insured against the risk of pregnancy. Encouraging this false sense of security may end up achieving the opposite of what the Mandate intends.
2. HHS has no meaningful data to support its claims that free contraception causes improved women’s health.
a. The HHS has not demonstrated any causal link between either greater access to contraception and fewer unintended pregnancies and abortions, nor between greater usage of contraception and fewer unintended pregnancies. It simply assumes that what works on an individual level will work on a societal level, but data and experience contradict this assumption. On a national level, unintended pregnancies have risen along with increased access to contraceptives through various public programs.
b. The Institute of Medicine report that the HHS relies upon to supports its claims, never demonstrates a causal link between greater access to contraception and fewer unintended pregnancies and abortions. HHS’ briefs in the lower courts and in the Supreme Court suffer the same problem. Without this proven causation, the Mandate’s claims are merely speculative.
c. The mandate is an overreach of the HHS’ scope of authority. Even if increased access to contraceptives reduces unintended pregnancies, the HHS brief supporting the mandate provides no evidence of resulting health benefits for women, which is what the HHS is authorized to address according to the Affordable Care Act.
d. The mandate addresses a false need for low-cost access to contraceptives. According to a Center for Disease Control study, among the (only) 11 percent of sexually active women who do not use contraception, cost is not even a “frequently cited reason” for nonuse.
e. The mandate doesn’t do anything to reduce the actual healthcare cost differential between men and women, which is associated with maternity costs, not contraceptive costs. If leveling the healthcare playing field were really its goal, it would make more sense to provide assistance with maternity or children’s healthcare costs, which are substantially more expensive for women than the relatively low cost of contraceptives.
3. The mandate is unconstitutional.
a. Even if the data cited did support HHS’ argument, it fails three legal standards:
i. The Religious Freedom Restoration Act requires governmental regulations that burden the free exercise of religion to advance a “compelling state interest,” but the HHS mandate fails to provide any evidence of such interest. The material above in point 2 demonstrates this.
1. Also, the HHS tacitly admits as much by its willingness to grant vast exceptions to the mandate. Just how compelling is the interest if so many organizations can opt out?
ii. Secondly, First Amendment jurisprudence dictates that if the government is to limit First Amendment freedoms, it must “specifically identify an ‘actual problem’ in need of solving,” then show that the burden is “actually necessary.” The HHS hasn’t demonstrated either an actual problem or the necessity of the burden on religious individuals and organizations.
iii. Finally, the Affordable Care Act authorizes the HHS to make regulations promoting women’s health, not children’s health, but HHS’ Supreme Court argument for the Mandate rests on claims of promoting child health (purportedly preventing health complications from unintended or too closely-spaced pregnancies etc.). But even this argument is absurd on its face – how can it claim that preventing or destroying embryonic lives (via some contraceptives and ECs’ post-fertilization action) help children?
4. The mandate is misleading and irresponsible regarding women’s health.
a. It hides the risks of contraception and certain contraceptive devices. The World Health Organization has labeled certain hormonal oral contraceptives as “known carcinogens,” Depo-Provera is linked with doubling HIV infection rates, and IUD usage is associated with various adverse health effects. The Mandate ignores these dangers and hides health risks from women.
b. In a 2012 study, STIs were shown to have increased along with increased access to emergency contraceptives and certain long acting reversible contraceptives. The HHS needs to be up-front about the risks involved in increased usage of contraceptives.
5. The mandate is demeaning to women, suggesting that childbearing women are unable to contribute to society on the same level as men.
a. An HHS brief explained its purpose as ensuring that women are “able to contribute to the same degree as men as healthy and productive members of society,” which is to be achieved by preventing pregnancies. This fails to promote gender equality on several levels. First, it is monumentally insulting to mothers, who are certainly contributing to society at “the same degree as men.”
But it also assumes that the sterile male is the norm to which women should aspire, disregarding entirely the unique contributions of women in society.
Rosanne Spinner
New Hyde Park
