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J. Ginsburg, Dissenting

J Ginsburg Dissenting CC PD USSC Simmie Cox

CC PD USSC Painting by Simmie Cox

Susan E. Wills - published on 07/08/14

J. Ginsburg erred: concrete, proven risks from mandated contraceptives far outweigh any alleged gains for women's health.

Justice Ruth Bader Ginsburg’s indignant dissenting opinion in Burwell v. Hobby Lobby has generated so much commentary that it’s “gone viral.”

Yet many of the assumptions underlying her dissent are demonstrably false. For example, she asserts (quoting dicta from Planned Parenthood v. Casey) that easy access to contraception and abortion are needed to “facilitate” women’s ability to compete equally with men and that “religious organizations exist to serve [only] a community of believers” (Dissent, 18). Professor Rachel Lu dispensed with the first claim here and the latter point already has been disproven by virtually every Catholic school, hospital, nursing home, charity and saint in the history of the Church by their service to fellow human beings irrespective of the latters’ faith or lack thereof.

But there are other foundational premises undergirding Justice Ginsburg’s opinion that have not received the attention they deserve, namely that: (1) contraception can be properly categorized as “preventive care”; (2) mandating it “furthers compelling interests in public health and women’s well-being”; and (3) these “interests” are “demonstrated by a wealth of empirical evidence” (Dissent, 24).

Try explaining how these drugs have furthered their loved one’s health and well-being to the families of teens and young mothers who’ve died as a direct result of using contraceptives. 

Tell that, for example, to Monica Greene, mother of 17-year-old La Monica, whom she describes as “active in church. She was sweet and outgoing and loved to help.” La Monica and her sister Stephanie “dreamed of being veterinarians and opening an office together.” La Monica started using the contraceptive device NuvaRing in May 2009 and died very suddenly a few weeks later from a pulmonary embolism (blood clot in one of her lungs).

Merck & Co., which manufactures NuvaRing, has now (as of June 2014) finalized a $100 million settlement to benefit 3,800 claimants, for death (to 83 women and girls) and injuries such as non-fatal strokes, heart attacks, blood clots, high blood pressure, heart disease and cancer of the breast or reproductive organs. That’s just one settlement and one set of claimants, of course.

Merck’s payout pales in comparison to the hefty $1.7 billion Bayer AG paid (as of March 2014) to settle 8,250 claims from users (and their surviving family members) of Yaz and Yasmin birth control pills. The death toll already exceeds 100 and there are many additional claims pending.

NuvaRing, Yaz and Yasmin are just a few of the many sometimes-fatal contraceptives. Further examples to follow, but first, let’s answer these questions:

Are Contraceptives “Preventive Care”?

Almost four years ago, I reported that Planned Parenthood was organizing a national effort to get contraceptives included in the preventive services mandate of the Affordable Care Act (ACA). At that time I wrote:

“Normally, preventive services mean vaccines, tests, screenings, etc. that are given with minimal risk to patients to prevent—or at least detect and provide an early warning of—serious illness and life-threatening conditions. Common examples: blood pressure and cholesterol screening for hypertension, mammograms for breast cancer, Pap tests for cervical cancer, and vaccines to prevent transmission of communicable diseases.

“But prescription contraceptives don’t prevent or screen for disease. Their purpose is to block the normal functioning of a healthy reproductive system. They prevent a person from being conceived or born.”

Fertility is not an illness or adverse medical condition. It’s not a disease to be prevented from spreading. It’s the normal healthy state.

Does the contraceptive mandate further public health and women’s well-being?

Even if one assumes, as Justice Ginsburg does, that it’s important for all women to have access to “free” contraception, including $1,000 IUDs, an employer mandate to include all methods “free” in employees’ health coverage is a strange way of closing the gap in access. Why? Because 90% of employer-based insurance plans already cover contraceptives, as law professor Helen Alvaré noted in the amicus brief of Women Speak for Themselves, an organization of 41,000 women she helped found.

And, according to Guttmacher Institute: “Public expenditures for family planning services totaled $2.37 billion in FY 2010.” These services were given to nine million girls and women from federal and state sources because they were under the age of 20 or had income below 250% of poverty level.

The government could easily expand eligibility to any women unable to purchase more expensive methods of contraception, without imposing mandates on the 10% of employers who are not already providing contraceptive coverage or on those who object to some methods only.

Justice Ginsburg asserts that overwhelming evidence points to public and personal health benefits that will inure to (the small percentage of) women (not already covered by an employer-plan nor eligible for enhanced Medicaid or other funding) by making long-acting reversible contraceptives (LARCs) more readily available to those who cannot afford them.

LARCs are more effective than pills, patches and rings in preventing pregnancy because they are under the control of doctors rather than the women using them. In other words, when a woman finds the “side effects” unbearable, she can’t stop taking/using a LARC on her own. She has to go to a doctor, clinic or emergency room. Examples of LARCs are IUDs (Mirena and Paragard), injectables (e.g., Depo Provera) and implants (Implanon).

It is not surprising that Justice Ginsburg champions the use of LARCs, sometimes called methods of “reversible sterilization.” In an interview published in the New York Times, she expressed surprise that the Supreme Court upheld the Hyde Amendment (drawing the line that Roe v. Wade did not require Medicaid funding of abortions) because—  

“Frankly I had thought that at the time
was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that
was going to be then set up for Medicaid funding for abortion.”

Hmm. What do you suppose she meant by “populations that we don’t want to have too many of”? Could it be low-income women who can’t afford those snazzy $1,000 IUDs? Can’t allow them to reproduce whenever ….

So, I think we can guess why she is such an eager advocate of LARCs, but

Where exactly is this overwhelming evidence of the health benefits of LARCs and other methods of contraception?

Tomorrow, in Part Two, we’ll see where the evidence leads.

Susan E. Wills is spirituality editor for Aleteia.

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