Fact and myth have become intermingled when it comes to the Affordable Health Care Act's HHS Mandate. Amidst the clang and clamour of Presidential Election campaign taglines, the truth about the actual effects of Obamacare on women's health and religious liberty is in need of greater national public attention than ever before.
During the vice-presidential debate on Thursday, October 11, Biden stated: "No religious institution - Catholic or otherwise, including Catholic social services, Georgetown hospital, Mercy hospital, any hospital - none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact." Responding directly to Biden's false statement about the HHS Mandate, the United States Conference of Catholic Bishops (USCCB) issued a press release the following morning, clarifying: "That is not a fact." Indeed, the mere fact that religious employers and other organizations are suing the federal government over the HHS Mandate in over 44 cases in at least 23 states demonstrates that Biden's statement is incorrect; the courts would not have accepted these cases in the first place if the plaintiffs were not suffering harm.
The Obama administration has consistently misinformed the American public on the actual effects of Obamacare and the HHS Mandate - not only on religious employers, but on women's health as well.
The day after the vice-presidential debate, Women Speak for Themselves (WSFT) filed an amicus curiae brief outlining the glaring lack of a credible medical case to support the HHS Contraceptive Mandate in the face of profuse, widely-known medical evidence of the serious, adverse risks and effects of hormonal and other contraceptives on women's health. The brief was filed in the U.S. Court of Appeals for the District of Columbia in the case, Wheaton College and Belmont Abbey College v. Sebilius et al., challenging the constitutionality of the mandate. Culture of Life Foundation Honorary Fellow, Helen M. Alvaré, is the Co-Founder of WSFT, a program of the Chiaroscuro Institute. The WSFT brief is supported by and representative of thousands of women across America. (For a detailed legal analysis of the religious liberty issues at stake in the HHS Mandate, see CLF's legal brief, "Defending Our First Freedom: The HHS Mandate and the American Promise of Religious Freedom," available at http://www.culture-of-life.org/defending-our-first-freedom-hhs-mandate-and-american-promise-religious-freedom.)
The Obama administration claims that forcing religious employers to cover contraception in violation of their religious beliefs is justifiable because doing so "furthers a compelling interest" in women's health. However, the government failed to create a medical case proving that women's health is actually improved by using contraception. In fact, the HHS Mandate (the policy requiring contraceptive coverage under Obamacare) is an adoption of an Institutes of Medicine (IOM) report that is not based on current, accurate medical data on contraceptives. (For further reading on the IOM report, see CLF's legal brief, "Abortion and America's Moral Consciousness: The Legal and Cultural Battle to Define Pregnancy" at http://culture-of-life.org//content/view/683/98/.)
The World Health Organization, National Cancer Institute, The New England Journal of Medicine, The Journal of the American Medical Association, Mayo Clinic and other established scientific institutions and journals have established that contraceptives cause increased risks of stroke, breast cancer, cervical cancer, liver cancer, HIV, STDs, ovarian cysts, blood clots and other serious and life-threatening conditions. The ignorance of the Obama administration and IOM of the large body of medical evidence on the harmful effects of contraceptives on women is not only striking and disturbing, but constitutionally and legally relevant. The absence of this medical information in the IOM report renders the report defective and the HHS Mandate unfounded and unconstitutional. (*Please refer to "Medical Health Risks of Contraceptives" in the accompanying text box.*)
The Obama administration claims that the HHS Mandate increases access to "preventative services that have strong scientific evidence of their health benefits." But there is no such strong scientific evidence when it comes to contraceptives. On the contrary, medical evidence proves that women's health and well-being is decreased, not increased, through contraceptive use. Merely preventing pregnancy is not in itself a "health benefit" to women, since pregnancy is not a disease but rather a sign of bodily health. Furthermore, studies have shown that increased access to contraception causes increased sexual activity and sexual risk-taking, which off-sets any purported decrease in unplanned pregnancies that the mandate claims to support. (See, e.g., Girma, s. et al. The impact of emergency birth control on teen pregnancy and STIs. Journal of Health Economics 20 (2011) 373-380.)
Lastly, the IOM report refers to low birth weight and negative behaviours (smoking, drinking, depression, and domestic violence) as being associated with unintended pregnancy; however, the studies referenced in the IOM report merely show that low birth weight and negative behaviours are correlated, not caused, by unintended pregnancy.
Legally, the Obama administration must, according to the Religious Freedom Restoration Act (RFRA), prove two things for the HHS Mandate to be constitutional: (1) that violating religious freedom is justified because doing so serves a "compelling interest" in women's health; and (2) that the HHS Mandate achieves this interest in the "least restrictive means" possible.
The Obama Administration failed this two-pronged test. First, medical evidence shows that contraceptives increase and do not decrease health risks for women. There is no medical case supporting the HHS Contraceptive Mandate.
Second, the mandate is not drafted as the "least restrictive means" - the Obama Administration could have easily enacted an exception for religious and other conscientiously objecting employers, but it did not. The current exception is drafted such that Catholic hospitals, social services, universities and other religious employers do not qualify for the exception as it is written. In fact, the government rejected amendments that would have expanded the exception to include these employers. In addition, the government could have drafted the mandate to require contraceptive coverage only for cases of diseases or other medical conditions that make pregnancy dangerous, but it did not. It is clear that the Obama Administration failed to carry the burden of proof under the RFRA two-pronged test and the HHS Mandate is therefore unconstitutional.
The "war on women" rhetoric advanced by HHS Secretary Sebilius and other Obamacare advocates is not working, as is evidenced by the most recent polling data on the surge of women voters favouring Romney-Ryan over Obama-Biden. Veteran Democratic pollster Celinda Lake stated that since the first Presidential debate, "In every poll, we've seen a major surge among women in favourability [sic] for Romney." A USA Today/Gallop Poll released this Monday shows Romney beating Obama by 4 percentage points, due mainly to an increase in women voters in favor of Romney. Similarly, a Pew Research Center Poll released after the first Presidential debate revealed that Obama lost his 18-point lead among women, tying 47%-47% with Romney-Ryan for likely women voters.
This recent polling data and the WSFT brief indicate that there is a growing number of American women who, even if they use contraception, simply consider other issues - such as religious freedom for employers in the abortion and contraception context - more important than getting free birth control that is readily available to them already.
In fact, a Gallop Poll released on Wednesday showed abortion as the most important voting issue for women in swing states, and government policies on birth control was ranked last. (The Gallop Poll shows that more women in swing states think Obama would handle the birth control issue better than Romney. It is important to remember that the number of women who don't think so has grown, thereby contributing in part to the surge in Romney support.)
Women are increasingly aware that protecting the religious freedom of employers does not in any way affect the legality of or their freedom to choose contraception. For many American women, the supposed "war on women" has been recognized for what it is - a smokescreen or decoy to hide or distract from the real issue at stake: religious liberty. Attempts to mislead the American public by re-framing the issue as a "war on women" are failing.
Furthermore, infringing on religious freedom under the guise of "women's health" does not work under a contraception policy that would facilitate an increase, rather than a decrease, in the risk of disease. Obamacare supporters declaring a "war on women" are using women's issues to further their own political agenda...and ironically, it is the women who, in the end, would suffer for it.
During the second Presidential debate on Tuesday, October 16, Obama made a false statement about the HHS Mandate. He stated that "insurance companies need to provide" contraceptives and other preventative services. This is incorrect. Employers - not insurance companies - are forced to pay for contraceptives under Obamacare and the HHS Mandate. The President made no mention of the First Amendment religious liberty issues at stake, nor did he seem aware of the dangerous side effects of contraceptives. And women were watching.
The Women Speak for Themselves brief presents a new constitutional argument against the HHS Contraceptive Mandate under Obamacare. It reveals the lack of a medical case supporting the mandate and provides established scientific evidence showing that the mandate forces employers to pay for "preventative services" that increase health care risks for women, rather than decreasing them. In addition, recent polling data shows that American women do not base their voting decision on who is giving out free birth control, but rather, on which candidate agrees with them on important issues such as religious freedom. When it comes to revealing the truth about the supposed "war on women," women are indeed speaking for themselves.
A summary of the medical data presented in the Women Speak for Themselves amicus brief
Oral Contraceptives
According to the New England Journal of Medicine, oral contraceptive pills double the risk of heart attack in women. The risk increases for women with hypertension (5x), who smoked (12x), with diabetes (16x), and with high cholesterol (23x).[REF. 1] The British Journal of Medicine reported that oral contraceptives cause an increased risk of ischemic stroke (3x) as well as an increased incidence of blood clots and pulmonary embolism. [REF. 2]
The Mayo Clinic reported that oral contraceptives increase the risk of breast cancer by 44%. [REF. 3] The World Health Organization's International Agency on Research of Cancer (WHO IARC) officially categorized "the Pill" as a Group 1 carcinogen for breast, cervical and liver cancers. [REF. 4] The Cancer Epidemiology, Biomarkers & Prevention journal reported a 320% increased risk of the most dangerous kind of breast cancer - triple negative breast cancer - in women taking oral contraceptives. [REF. 5] The Centers for Disease Control (CDC) reported that there is a 4x greater risk of breast cancer than uterine and ovarian cancers in women taking oral contraceptives. [REF. 6] According to the National Cancer Institute, use of oral contraceptives triples the risk of cervical cancer in women. The NCI also recognized studies showing oral contraceptives increase the risk of liver cancer and rupturing benign liver tumors in women. [REF. 7]
Women taking oral contraceptives also have a 2x increased risk of contracting genital human papillomavirus (HPV) which leads to cervical cancer, the British Journal of Cancer reported. [REF. 8] According to the Journal of Acquired Immune Deficiency Syndrome, oral contraceptives cause a 60% increased risk of HIV infection. [REF. 9]
Long-Acting Contraceptives
Injectable contraceptives, implants and intrauterine devices (IUDs), such as ParaGard, Mirena, Implanon and Depo-Provera, have also been scientifically shown to increase health risks. The prestigious Lancet Infectious Diseases Journal published a study showing that "biological properties" of injectable contraceptives double the risk of HIV infection in women. Furthermore, male partners of infected women have a 2x risk of HIV infection than if no contraception was used at all. [REF. 10] These alarming, breakthrough findings appeared on the front page of the New York Times in October 2011.
Studies also show that long-acting contraceptives also cause an increased risk of uterine perforation, ovarian cysts, pelvic inflammatory disease (PID), possible permanent loss of fertility, ectopic pregnancy, pulmonary emboli, strokes and loss of bone mineral density.