….A. The [Government’s] Report Does Not Support the Government’s Assertion that Increased Use of Contraceptives Will Promote Women’s Health.
….At the risk of stating the obvious, getting pregnant is not like catching a contagious disease. Myriad factors – e.g., religion, age, marital status, social situation, medical condition, cultural background, economic circumstances– will play a part in when and whether a woman engages in sexual activity and whether, doing so, she is seeking to get pregnant, is trying to avoid pregnancy, is ambivalent about getting pregnant, or does not consider whether she will get pregnant. Thus, the Government’s “vaccination model” of decreasing unintended pregnancies (i.e., assuming increased availability of contraception will decrease incidence of the “disease” of unintended pregnancy) grossly oversimplifies the issues involved.
Indeed, right from the outset, Government’s case is based on a false premise, i.e., that there is a clear distinction between intended and unintended pregnancies. In fact, “[r]esearchers have long abandoned the false dichotomy of intended versus unintended pregnancy.” Some women welcome “unintended” pregnancies, and some “intended” pregnancies end in abortion due to complications or a change in a woman’s social situation.
Even assuming arguendo that there is a clear-cut, measurable category of pregnancies that are “unintended,” the Government has failed to demonstrate that 1) lowering the costs of contraceptives (to zero) for those covered by insurance will lead to any appreciable increased usage among those currently at risk of unintended pregnancy within that population and to a decrease in unintended pregnancies within that population, and 2) unintended pregnancies have negative health consequences for women. Rather, the Government’s argument is based on a chain of presumed causes and effects, and the evidence supporting each link is attenuated, ambiguous, disputed, or non-existent. Indeed, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.”
1. The Government has failed to show that the Mandate will lead to increased usage among those at risk of unintended pregnancy or to a decrease in unintended pregnancies among those covered by the Mandate.
The Government hypothesizes that women are deterred from obtaining contraceptives because of their cost, and that therefore the Mandate will increase utilization of contraceptives. However, its evidence is based on supposition, dubious analogies, and assumed but unproven correlations.
The [government] cites a Kaiser Family Foundation report as evidence that women are more likely than men to report cost-related barriers to receiving medical care. The study in question asked men and women whether they or a family member had delayed or foregone certain health care in the past year because of the cost. Thus, the fact that more women than men, by a factor of a few percentage points, reported they or a family member had done so says little about which gender is actually foregoing medical care because of the cost.
The [government] also cites studies showing that the costs of cancer screening, dental services, mammograms and pap smears may deter women from receiving those services. Yet, even if these studies in fact supported [their] statement, none of them makes the necessary connection between women deferring or foregoing this type of care (i.e., screening tests) and women failing to buy contraceptives because of the cost. It is far from a logical corollary that a woman who delays getting her annual pap smear because of the cost will also decide to stop using contraceptives because of the cost.
Regarding contraceptives in particular, [the government’s] own sources show that 89% of women avoiding pregnancy are already practicing contraception, and that among the other 11%, lack of access is not a statistically significant reason why they do not contracept.
The [government’s] citation to a study by Santelli and Melnikas in support of its argument that increased use of contraceptives will lead to declines in the rate of unintended pregnancy is typical of its approach to this topic. The Santelli study examined, inter alia, whether increased use of contraception by teens was associated with decreased pregnancies. Thus, the study is based on increased usage, a factor that the IOM failed to establish will result from the Mandate, because it failed to prove that cost was a deterrent factor to contraceptive use. Second, the study was limited to teens, a subgroup far narrower than and differing in significant ways from the group affected by the Mandate.
Indeed, this failure to consider the particular demographic involved is a common flaw in the studies cited by [the government] and other defenders of the Mandate. Being limited to, e.g., teens or poor women, these studies lack probative value on the effect of the Mandate on the demographic at issue: employed women, the wives of employed men, and the female dependents of employed parents.
Undeterred, the [government] concludes, “The elimination of cost-sharing for contraception therefore could greatly increase its use, including use of the more effective and long-acting methods, especially among poor and low-income women most at risk for unintended pregnancy.” The final logical lapse in [the government’s] treatment of this topic is that poor and low-income women are already eligible to receive no-cost contraceptives under myriad state and federal programs. Yet, as the Report itself notes, they have significantly higher rates of unintended pregnancy than that part of the female population not guaranteed free contraceptives.
The … Government, seems oblivious to the lessons learned over the five decades since the advent of hormonal contraceptives, namely, that while for the individual, a contraceptive drug or device may prevent a pregnancy, this result cannot be extrapolated to a societal scale. Increasing access to contraceptives affects not only those who were already at risk for unintended pregnancy. Rather, it changes behaviors and expectations across society….
To read the entire brief (many other arguments devastating to Obamacare mandate), click here.