Hopes of repealing Obamacare took a beating last week with the election results. For the foreseeable future, implementation of the Affordable Care Act will continue, including the Department of Health and Human Services' (HHS) "contraception mandate" -- a frightening glimpse of what we have to look forward to.
The genesis of the mandate is a prime example of bureaucracy in action: The Health Resources and Services Administration, a branch of HHS, adopted a set of guidelines recommended by a report from the Institute of Medicine (IOM) -- guidelines that were adopted after presentations from groups that vigorously advocate for abortion and contraception, including the Guttmacher Institute, the National Women's Law Center and Planned Parenthood Federation of America. No groups from the "other side" were allowed to weigh in on the process.
What was the end result of this bureaucracy and political pandering? The definition of "preventative services" was expanded to include all FDA-approved contraceptive methods (including those with abortifacient propensities), sterilization procedures and patient education and counseling.
Employers with religious beliefs prohibiting the use of contraceptives objected to being forced to violate their conscientious beliefs through funding these "services" in employee insurance. Half-acknowledging these objections, HHS introduced the "religious employer" exemption, under which some nonprofit religious employers -- essentially those qualifying as houses of worship under the Internal Revenue Code -- are exempt from the mandate. This narrow exemption left numerous employers faced with violating their religious convictions or paying hefty fines.
Faced with this choice, many employers have taken to the courts for relief. According to the Becket Fund for Religious Liberty, there are now 40 active cases representing more than 110 plaintiffs throughout the country challenging the mandate on religious-freedom grounds.
The plaintiffs argue that the mandate puts direct pressure on religious exercise by requiring employers to violate their sincere religious beliefs. For example, one plaintiff is Hobby Lobby, a company owned by the Green family. If the company continues to offer employee health insurance without the mandated contraception coverage, it will incur penalties of about $1.2 million per day, beginning in January 2013. If it ceases to offer employee insurance, it will face annual penalties of about $26 million per year. Compliance with the mandate means the additional cost of covering the specified contraceptive items and, more important, it would violate the sincere religious beliefs of the Green family -- beliefs they have upheld consistently since their company's inception.
The government argues that this burden is justified by its compelling interest in protecting women's health and gender equality. This sounds good on the surface, particularly as a political talking point.
Yet, what if the premise that contraceptives promote "women's health" is shown to be unsound?
Closely examined, the evidence on the health impact of the mandated types of contraception suggests that far from benefiting women's health, they actually are seriously dangerous to women's health. Some of the health hazards documented in peer-reviewed studies include higher risk of heart attack, stroke and cardiovascular complications, and greater susceptibility to sexually transmitted infections, higher risk of breast cancer, cervical cancer, and increased risk of liver tumors.
For example, a 2001 study published in the New England Journal of Medicine found that among women with no conventional risk factors for heart disease, those who took oral contraceptives had twice the risk of heart attack. If other risk factors were added, such as high cholesterol, the figures went up to as much as 23 times the risk. The evidence of these health risks has been recognized by other agencies of the government and has been acknowledged by reputable international medical authorities. For example, the World Health Organization classifies combined oral contraceptives as "Group 1: Carcinogenic to Humans."
The IOM ignored this substantial body of evidence, relying instead on a one-sided report, when it recommended the mandate. This misplaced reliance should be a key factor in destroying the legal basis for the mandate because the means chosen (free contraception) do not promote the desired end (better health for all women).
Keep in mind what the challenges to the mandate do not do: They do not argue against women being able, of their own accord and with their own funds, to choose whatever contraceptive method they desire. Women are capable of weighing health risks against desired benefits, and they do so on a regular basis. Women do not need to trample their employer's religious freedom to achieve health or equality, nor do they need interference from a paternal government to achieve these goals.
Yet through the mandate, the government has proved to be not only paternalistic, but irresponsible as well. Protecting women's health is a worthy goal, but mandating contraceptives is counterproductive to that end, and thus, the mandate lacks its asserted justification for forcing employers into the regime.
As Obamacare is implemented, we will probably see more of these slipshod attempts to fix perceived political problems with ill-fitting "solutions." Will the next mandate put everyone at risk by lowering the standards on who can perform certain medical procedures? Just recently, the state of California (which has had its own state-level contraception mandate for years) has gone to the next level by allowing certain non-physicians to perform abortions. In doing so, it ignored evidence of increased injury to women from non-physician practitioners performing abortions. What was the justification for lowering standards? Increasing access to abortion and thereby promoting women's health. Again, the means don't fit the ends, but that increasingly doesn't seem to matter.
Dana Cody is the president and executive director of the Life Legal Defense Foundation, where Rebekah Millard is staff counsel.