It started with 33 words. One subparagraph of one subdivision of one subpart of one subchapter of one . . . you get the picture. It was just one little provision in the massive Patient Protection and Affordable Care Act (PPACA), known more familiarly as Obamacare. But that one provision was the catalyst for a nationwide debate over the meaning of religious freedom, the role of churches in society, the definition of a religious employer, and the ability of 30-year-old Georgetown law students to pay for their own birth control pills.
The 33 words comprise the innocuously titled “Women’s Health Amendment,” introduced by Democratic Senator Barbara Mikulski—which should have been the first clue that something was afoot. Sen. Mikulski, a committed pro-abort and staunch defender of Planned Parenthood, claimed that her amendment mandating that all insurance plans provide no-cost “preventive services” for women “is strictly concerned with ensuring that women get the kind of preventive screenings and treatments they may need to prevent diseases particular to women such as breast cancer and cervical cancer.”
Rather than specifying in the law itself what these critical disease-preventing services were, the Women’s Health Amendment directed the Health Resources and Services Administration (HRSA), a division of the Department of Health and Human Services, to draw up “comprehensive guidelines” furnishing the details. HRSA in turn outsourced the decision-making process to the purportedly independent Institute of Medicine, and that’s where Sen. Mikulski’s real agenda was revealed.
The Institute of Medicine committee tasked with making recommendations for preventive services for women was stacked with individuals whose backgrounds included significant involvement with Planned Parenthood and other pro-abortion advocacy groups. The committee members then invited various groups to make presentations, and—what are the odds?—the first three presenters to the committee were representatives from the National Women’s Law Center, the National Women’s Health Network, and Planned Parenthood Federation of America, all staunch advocates of “reproductive freedom,” meaning abortion on demand.
Interestingly, there were no single-issue speakers on behalf of osteoporosis prevention, or breast cancer prevention, or heart disease prevention. The bulk of the committee’s time and paper was spent on just one of Senator Mikulski’s “diseases particular to women”: pregnancy and how to prevent it.
As the saying goes, personnel is policy. The policy recommendations from the IOM reflected the priorities and biases of the committee members. As these biases lined up quite nicely with those of HHS Secretary Kathleen Sebelius and others in the Obama Administration, HHS turned the IOM’s eight recommendations, word for word, into mandates of what health insurance plans must cover at no cost, including “all FDA-approved contraceptive methods [including abortifacients] and sterilization procedures.”
We all know what happened next. Scores of religious institutions filed suit challenging the mandate as a violation of their right to free exercise of religion. They were joined by a number of for-profit businesses whose owners also objected to being forced to provide coverage for contraceptives and abortifacients, in violation of their religious beliefs.
Because the mandate is merely an administrative regulation, not a law itself, it is governed by the Religious Freedom Restoration Act, which provides that no federal action may substantially burden the free exercise of religion unless the government demonstrates that the action furthers a compelling state interest and is the least restrictive means of furthering that interest.
To date, the government has attempted to meet this burden by citing the IOM report that accompanied its recommendations. The report supposedly shows that 1) cost deters women from using contraceptives; 2) greater use of contraceptives and abortifacient drugs would lead to fewer unplanned and too closely spaced pregnancies; 3) unplanned and too closely spaced pregnancies are unhealthy for women and their children; 4) therefore, providing free contraceptives will lead to healthier women and children. However, the evidence that the IOM cites for each step of this syllogism is nebulous, inconclusive, disputed, or fictitious.
More importantly, the IOM report barely touched on the negative health effects of hormonal contraceptives, which include greater risks of cardiovascular disease (strokes, heart attacks), breast cancer, cervical cancer, liver tumors, and sexually transmitted infections, including HPV and HIV. The IOM report blithely sidesteps these risks by asserting that some unspecified “side effects” of hormonal contraceptives are “generally considered minimal.”
Because, in formulating the mandate, the government simply adopted the IOM’s recommendations and report, the IOM’s failure has become the government’s failure. The government has put itself in the position of having to demonstrate that the contraceptive mandate “furthers the compelling governmental interest” of promoting women’s health, when the record makes clear that it never even considered these health risks associated with contraceptive use, much less balanced these risks against the sketchy benefits supposedly accruing to increased contraceptive use.
This complete failure to consider the risks also leads to a second legal vulnerability of the mandate. Government regulations are adopted according to a strict process set out in the federal Administrative Procedures Act (APA). The APA provides that a government agency action may be set aside if it is “arbitrary and capricious,” including if the agency “entirely failed to consider an important aspect of the problem” before issuing its ruling. And that is exactly what HRSA did in issuing the mandate: it adopted the IOM’s recommendations while “entirely failing to consider” the evidence, much of it compiled by the government itself, that contraceptives increase various health risks for women.
Another basis on which an agency action may be set aside as “arbitrary and capricious” is when the agency “considered factors which Congress did not intend it to consider.” Judging from the name of the amendment itself, Congress had one goal in mind. It passed the Women’s Health Amendment to promote women’s health. And nothing in the legislative history of the WHA suggests that Congress had any intention other than making it easier for women to stay healthy by ensuring that cost was not a deterrent to them receiving preventive health services.
But apparently HHS Secretary Sebelius was unable to resist letting some of her Planned Parenthood-inspired ideology slip into the final regulation. The regulation explains the supposed health benefits of contraceptives and how the cost of preventive care falls more heavily on women than men because of “gender specific” conditions. But it also states, “Researchers have shown that access to contraception improves the social and economic status of women.” A footnote to the statement cites publications of the Guttmacher Institute (Planned Parenthood’s research arm) and articles with titles such as “Career and marriage in the age of the Pill” and “The power of the Pill: oral contraceptives and women’s career and marriage decisions,” and “More power to the Pill: the impact of contraceptive freedom on women’s life cycle labor supply.”
This statement in the regulation and the cited materials are claiming benefits for increased contraceptive use that are unrelated to women’s health. They are touting contraceptives as a tool of social engineering, declaring that childless and child-lite women are better able to climb the socio-economic ladder, better able to contribute to the country’s labor supply, and, in general, better able to “make something of themselves” than those benighted women who are bearing and raising the next generation.
Again, nothing in the legislative history of the Women’s Health Amendment suggests that Congress was giving HRSA carte blanche to dictate health insurance coverage for the purpose of assisting with the restructuring of society along the anti-natalist lines of Planned Parenthood and the National Organization of Increasingly Elderly Women.
On all these fronts, the contraceptive mandate is vulnerable to being struck down in court. To date, LLDF, in partnership with the Bioethics Defense Fund, has filed amicus curiae briefs in six different lawsuits challenging the Mandate, and we have received requests from several other parties to file in their lawsuits as well. In our briefs, we highlight the peer-reviewed research showing the serious health risks associated with contraceptives/abortifacients. Moreover, we challenge the government’s claim that these drugs, which were designed solely to disrupt the normal functioning of healthy women’s bodies, should, as a matter of national policy, be pushed as a means of “promoting women’s health” and “ensuring gender equity.”
Abortion proponents have used the mythical “war on women” to great effect in furthering their agenda, equating opposition to the contraceptive mandate with misogynism, pure and simple. LLDF’s challenges to the legality of the HHS mandate present a unique opportunity to set the record straight as to who is playing politics with women’s health.