The HHS Contraception Coverage Mandate: Public Policy Challenges (con’t)
The third public policy difficulty with the HHS mandate is the assertion that contraception constitutes preventive care. Mandate supporters have repeatedly stated this claim, one that is succinctly expressed by Sylvia Law:
Much of what standard medical practice does, and much of what health insurance pays for, is avoiding damaging [and undesired] consequences to the patient that will be more costly in the long run. Excluding contraception – also a preventive measure – from coverage effectively discriminates against employees who want to avoid the undesired consequence of pregnancy.
This assertion is problematic on several fronts. First, it is not supported by law. As we saw in the essay “How Did We Get Here?”, in 2007 the 8th Circuit Court of Appeals in In re Union Pacific Railroad rejected the contraception guidelines established by the EEOC seven years earlier. The court did this, in part, because the EEOC “compares prescription contraception to the broadest possible spectrum of other preventive treatments without citing a persuasive basis for doing so.” Stated differently, the court found “unsupported” the claim that prescription contraception constitutes preventive care, and as such it ruled that employers do not violate any federal law when they exclude contraceptive coverage from their health care plans. 
The assertion is also problematic in a medical sense because, as opponents argue, contraceptive use introduces a host of both short- and long-term health risks for woman. OCs are linked to weight gain, nausea, fluctuationsin menstrual flow, and depression. Other more serious side effects include cardiovascular diseases such as hypertension, heart attack, stroke, and pulmonary embolism; as well as an increasedrisk for liver tumors and gallbladder disease. It is no secret in the medical community that at least 190 women have died from blood clot complications attributed to Yaz, a contraceptive whose manufacturer is facing more than 6500 lawsuits, and that the World Health Organization has determined the synthetic estrogen and progestin used in combined OCs is carcinogenic in humans. Specifically concerning the link between OCs and breast cancer, the Susan G. Komen Foundation reports that women using birth control pills “appear to have a slightly increased risk” of developing this type of cancer, and the Mayo Clinic reports that various scientific studies demonstrate a statistical link between the two. For both organizations, “key factors” appear to be how many years a woman has taken the pill and how recent was her last use.
Unfortunately, OCs do not have a monopoly on the health risks associated with prescription contraceptives. Approximately 130 blood clot-related deaths have been linked to the Ortho-Evra patch, and 40 deaths (along with over 700 lawsuits) have been linked with NuvaRing. At least 15 women have died after using RU-486 to abort an early term pregnancy, and there have been hundreds of cases of serious, even life-threatening, hemorrhage associated with it necessitating blood transfusions and surgery. It is well-established fact that more than 300,000 lawsuits charging infertility and birth defects (among other complications) were filed against the manufacturer of the Dalkon Shield, an intrauterine device that is no longer on the market. And the list goes on and on.
Mandate supporters counter these realities by stating there are many medications that have serious, even potentially deadly side-effects, yet they are still widely prescribed by medical professionals. Just because a medication can have negative side effects, this in itself does not mean that it should not be prescribed or used. This is a valid challenge, however it does not take into consideration that in most cases both the intent and function of contraceptives are quite different from that of other prescription drugs. Suppose a patient with hypertension is prescribed a potent blood pressure medication that potentially could have negative side-effects. The reason the patient accepts the risk and takes the medication is because the medication’s purpose is to act upon that which is causing the hypertension. Thus both the intent of use and the mechanism if the medication are to treat that which is not functioning “normally” in the patient in order to bring him/her back to a state of health. Generally speaking, the same cannot be said of contraceptives. In terms of intent, the primary reason a woman uses a contraceptive is not to maintain or restore the health of her reproductive system, but to artificially suppress its natural functioning in order to prevent pregnancy. In terms of function, prescription contraceptives generally do not act to foster reproductive health, but to disrupt the otherwise healthy functioning of the reproductive system of which fertility and pregnancy are positive signs. Now it is true that some women are prescribed birth control pills for reasons other than preventing birth, and if there are valid medical reasons for taking these medications then they can and generally should be included in employer health care plans. However, these cases are the minority. So while it is true that powerful medications with potentially serious, even fatal, side-effects are routinely prescribed, their intent and function are to restore and maintain the patient’s health. Generally speaking, this is not the case with prescription contraceptives.
As a result of this (and other) information, mandate opponents argue that in a large majority of cases prescription contraception does not constitute preventive care. Medical services such as physical exams, immunizations, blood pressure monitoring, cholesterol screenings, and tobacco cessation programs are justifiably designated preventive care because by definition they seek to prevent serious illness or life-threatening condition, or at least provide early warning of such illness or condition so they can be treated quickly and with a greatest possible chance of success. Electively prescribed contraceptives cannot be included in this category because (a) they do not alert one to illness or disease, and (b) there is no illness or life-threatening condition being prevented through their use. Yes pregnancy is intentionally being prevented through the manipulation of the woman’s fertility, but medically speaking this is not preventive care. Fertility in itself is not a life-threatening condition, nor is it a disease. The overall point here is that if women can experience harmful, even deadly, side effects as a result of their use, and because they suppress rather than restore or maintain the normal, health functioning of the female reproductive system, there are very serious concerns about defining prescription contraceptives as preventive care. These realities, in turn, render the HHS mandate even more problematic.