[Koran-Digital] Warning: Contraceptive Drugs May Cause Political Headaches

Perspective

Warning: Contraceptive Drugs May Cause Political Headaches



R. Alta Charo, J.D.



N Engl J Med 2012; 366:1361-1364April 12, 2012



Comments open through April 18, 2012



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Foster Friess, a conservative political donor, recently discounted the

importance of insurance coverage for contraceptives, saying, "Back in my

days, they used Bayer Aspirin for contraception. The gals put it between

their knees, and it wasn't that costly." Though his comment stunned

interviewer Andrea Mitchell, it at least focused on the issue of

contraceptives. Most critics of the federal effort to ensure access to

contraceptives have reframed the issue as a war on religion. And as

Georgetown University theologian Tom Reese told National Public Radio in

early February, "If the argument is over religious liberty, the bishops

win. If the argument is over contraceptives, the administration wins."

Indeed, a 501(c)(4) advocacy group, "Conscience Cause," has already been

formed to leverage media to spur legislative action and promote the view

that this debate is not about contraception, but rather about "freedom

and the protection of our religious values."



Since the average American woman spends 5 years pregnant (or trying to

be) and 30 years trying not to get pregnant, nearly 99% of sexually

active women have used birth control. And the most effective

contraceptives — such as the birth-control pill and intrauterine devices

(IUDs) — are unavailable except by prescription, which makes them part

of the health care system rather than merely a lifestyle choice akin to

eschewing cosmetics. That such contraceptives constitute health care is

even clearer when one considers the reduction of maternal and neonatal

morbidity and mortality from the spacing out of births or the use of

oral contraceptives for conditions ranging from acne to uterine fibroid

tumors.



But contraceptives can be pricey. Birth-control pills can run $600 per

year, and an IUD may cost $1,000, so many women favor less expensive,

albeit less reliable, options such as condoms and even withdrawal.

Insurance coverage allows women to have a genuine choice. As the

Institute of Medicine recommended, under the Affordable Care Act,

insured women will qualify for contraceptives without copayments, as

part of a range of preventive services.



The Obama administration exempted houses of worship from the requirement

of offering employees health insurance covering contraception — a more

generous policy than those of many of the 28 states already requiring

insurers to cover contraceptives (see boxState Policies on Contraceptive

Coverage). But the exemption initially didn't apply to institutions such

as hospitals and universities whose fundamental purpose was

nonreligious, even if the institution was affiliated with a religious

sect. Such institutions are typically subject to generally applicable

laws for their nonreligious functions, such as civil rights laws

prohibiting employment discrimination outside the context of ministerial

functions. And the Equal Employment Opportunity Commission had already

determined that singling out contraception from prescription-drug and

preventive-care coverage is a form of sex discrimination forbidden by

Title VII of the Civil Rights Act, with no exemption for religious

employers.1 Nonetheless, amid growing conflict, the administration

expanded its exemptions to include religiously affiliated hospitals and

universities, deciding instead that their contracted insurance companies

would be required to cover contraceptives without any financial support

from the institutions. The goal was to ensure that women have all the

recommended preventive-care coverage while eliminating even tenuous

financial connections between religious employers and contraception

benefits.



Yet at least seven states — Florida, Michigan, Ohio, Oklahoma, Nebraska,

South Carolina, and Texas — are joining lawsuits to overturn the

requirement. And some states are considering bills that would allow

insurance companies to ignore the federal rules. Measures in Idaho,

Missouri, and Arizona would extend the exemptions to secular insurers or

businesses, and the Senate defeated a similar measure by a narrow margin.



Despite the administration's accommodations, the policy's opponents have

reframed it as discrimination against religious organizations — even

against religion itself. It has thus become yet another simmering health

care controversy like the debate over religiously based refusals to

prescribe or dispense contraceptives — a debate that remains unsettled,

as witnessed by the yo-yo pattern of decisions in the challenge to

Washington State's requirement that pharmacies dispense contraceptives.

(The latest decision favored the pharmacists who did not want to

dispense contraceptives on grounds of personal conscience or religion;

the case is again heading for appeal.) But the current controversy is

not about a personal reluctance to directly facilitate another person's

action that one believes is immoral, even if the actor does not.

Instead, it relates to passive forms of alleged complicity that are far

more tenuous, and it touches on the ways in which a multicultural

society cross-subsidizes the choices of its varied citizens. In other

words, employee benefits are now embroiled in the struggle for the

public square.



There are at least two competing views about how to organize our public

institutions, public places, and public duties. In one vision,

individuals may exercise their freedom to act on their religious

dictates even if their acts limit access to public goods by people who

follow a different creed. A police officer, for example, argued in

federal court that he ought not to be required to provide protection to

a casino because he believed gambling was sinful.2 The competing view is

that people performing public functions must make themselves available

to everyone, regardless of personal creed — for example, an airport taxi

driver must pick up passengers carrying duty-free alcohol even if he or

she deems drinking to be sinful.2 The competition for the public space

and the question of who may be forced to make some sacrifice was

captured well by Florida Senator Marco Rubio, who argued that "the

government can't force religious organizations to abandon the

fundamental tenets of their faith. . . . If an employee wants birth

control, that worker could . . . just choose to work elsewhere."3



Similar reasoning underlies many arguments for the acceptability of

service denials: the patient should simply go elsewhere. But it is far

from a solution when sectarian-hospital emergency departments refuse to

provide emergency contraception to rape victims or to perform

health-preserving surgeries after incomplete miscarriages. In the past

decade, religiously affiliated organizations owned nearly one in five

U.S. hospital beds,4 and doctrinal restrictions at secular hospitals are

growing because of increasing mergers with religious hospital systems.5

A vision of a public space in which every religious practice blooms

might quickly become one in which a single religious doctrine is imposed.



Institutions opposing the new policy argue that they're still

financially connected to the contraceptive benefit, in contradiction to

their doctrine. But Americans don't usually succeed in claims that the

use of their funds in contravention of their religious views violates

their constitutional or statutory rights: tax resisters, for instance,

have been swatted down by the courts, even when they were objecting to

state-ordered killing in the form of capital punishment or war. And the

objections in this instance are yet more tenuous: Catholic hospitals and

universities are not required to pay for birth-control coverage.

Nonetheless, coverage in the general benefit package is considered

unacceptable complicity. By this logic, any benefit that an employee

might use to commit an act contrary to institutional doctrine could be

withheld — including, it would seem, ordinary salary.



Given the lack of past controversy over state laws on contraceptive

insurance coverage and the spate of recent efforts to constrict

reproductive rights — ranging from "personhood amendments" granting

fertilized eggs the same legal rights as liveborn children, to mandatory

transvaginal ultrasonography before consenting to an abortion, to the

defunding of screening for cancer and sexually transmitted diseases at

organizations that separately provide privately funded abortion services

— some observers characterize the debate over contraceptive coverage as

a war on women. But others point to litigation about prayer in schools,

Christmas displays on public lands, and requiring U.S. aid organizations

to offer contraceptive services to rape victims in war zones as evidence

of a war on religion.



Let's recognize that the current debate is about public health and

contraception. But at the same time, given the battle over framing,

let's also take seriously the more enduring question about our public

space: whether every religious institution and adherent is free to act

to the point of imposing on others, or whether every individual is free

from being imposed upon to the point of stifling some who would act.

This debate deserves more than partisan sound bites and slogans. Perhaps

Friess wasn't too far off, and the best cure for today's contraceptive

headache is for the entire country to take two aspirin and lay off until

after the election.



Disclosure forms provided by the author are available with the full text

of this article at NEJM.org.



This article (10.1056/NEJMp1202701) was published on March 14, 2012, at

NEJM.org.

Source Information



From the School of Law and the School of Medicine and Public Health,

University of Wisconsin, Madison.



http://www.nejm.org/doi/full/10.1056/NEJMp1202701?query=gynecology-obstetrics#t=article



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