American College of Medical Genetics and Genomics ACMG
American College of Obstetricians and Gynecologists ACOG
Apolipoprotein E APOE
Assisted reproductive technology ART
Cell-free DNA cfDNA
Chorionic villus sampling CVS
Chromosomal microarray analysis CMA
Copy number variant CNV
Direct to consumer DTC
Embryonic stem cell ESC
Food and Drug Administration FDA
Human immunodeficiency virus HIV
In vitro fertilization IVF
Institute of Medicine IOM
Intrauterine device IUD
National Institute of Child Health and Human Development NICHD
National Institutes of Health NIH
Personal genome service PGS
Religious Freedom Restoration Act RFRA
Single nucleotide polymorphism SNP
Variant of unknown significance VOUS
Society has great expectations that modern medical technologies will improve longevity and the quality of human life, and nowhere are these expectations higher than in the practice of obstetrics and the desire and expectation of having a healthy child. Along with the rapidly expanding capabilities in diagnosis and treatment, physicians find themselves facing numerous ethical dilemmas while practicing in a legal and social climate in which malpractice suits can threaten even the most competent and conscientious practitioner.
We cannot address in a single chapter the wide variety of ethical and legal controversies that face contemporary obstetric practice and research. Instead, we focus on selected topics of particular relevance to the practicing obstetrician.
Although only about one in four pregnancies ends in elective abortion, abortion has been the most controversial and political medical procedure in the United States for the past four decades. The political debate over abortion has shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional rights versus states’ rights, government versus physician, and physician and patient versus state legislature. In 2010, the abortion debate came close to derailing the Affordable Care Act, and in 2014, the U.S. Supreme Court ruled that corporations could have religious beliefs and that these beliefs could permit them not to include some birth control methods (that the corporation inaccurately thought induced abortion) in the health insurance plans of their female employees. Because the 1973 U.S. Supreme Court opinion on Roe v. Wade remains so central to the law (and ethics) regarding the physician-patient relationship, as well as federal financing and regulation of clinical medicine and research and of health care insurance itself, it is essential that obstetricians have a clear understanding of Roe and its enduring influence on patient rights—especially reproductive liberty, medical practice, and politics.
Hundreds of statutes—including relatively new ones that require ultrasound images of the fetus be made available to pregnant women before abortion, suggesting that 20-week-old fetuses feel pain, and requiring that abortion clinics have ready access to hospital emergency departments—and almost two dozen Supreme Court decisions on abortion later, the core legal aspects of Roe v. Wade, the most controversial health-related decision ever made by the Court, remain substantially the same as in 1973. Attempts to overturn Roe in both the courtroom and the legislature have failed, although they continue. Pregnant women still have a constitutional right to abortion because the fetus is still not a person under the Constitution. States still cannot make abortion a crime, either for the woman or the physician, before the fetus becomes viable with the exception of the use of a specific procedure labeled “partial-birth abortion” by Congress. States still can outlaw abortion after the fetus becomes viable, but only if there is an exception that permits abortion to protect the life or health of the pregnant woman. Also, states still can impose restrictions on abortion before fetal viability only if those restrictions do not create an “undue burden” on the pregnant woman, understood as a substantial obstacle that might actually prevent a pregnant woman’s obtaining an abortion.
The first case to embrace the concept of reproductive liberty was Griswold v. Connecticut, in which the Court ruled in 1965 that a Connecticut statute criminalizing the use of contraceptives violated the constitutional right to privacy that married couples had in sexual relations. Later, in 1972, the Court found that even outside marriage, a person had a “right to privacy … to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.” The following year, in Roe, the Court struck down a Texas law that made it a crime for physicians to perform an abortion unless it was necessary to save the life of the patient; there were no exceptions for the woman’s health. The Court held that women have a constitutional right of privacy that is fundamental and “broad enough to encompass a woman’s decision … to terminate her pregnancy.” Because the right is fundamental, states that wished to restrict abortion rights were required to demonstrate a compelling interest to restrict the exercise of this right. The Court ruled that the state’s interest in the life of the fetus became compelling only at the point of viability, defined as the point at which the fetus can survive independently of its mother. Even after the point of viability, the state cannot favor the life of the fetus over the life or health of the pregnant woman. Under the right of privacy, physicians must be free to use their “medical judgment for the preservation of the life or health of the mother.” On the same day that the Court decided Roe , it also decided Doe v. Bolton, in which the Court defined health very broadly: “The medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”
Roe and Doe together established that both physician and patient were protected by the constitutional right of privacy. In later cases, the Court continued to defer to the medical judgment of the attending physician. For example, in Planned Parenthood of Central Missouri v. Danforth in 1976 , the Court concluded that state legislatures could not determine when viability occurred; rather this “essentially medical concept … is, and must be, a matter for the judgment of the responsible attending physician.” This remains the case today; even as viability in general moves earlier in the pregnancy, it is not up to legislatures or courts to determine when an individual fetus is viable by drawing a line based on the age of the fetus— the viability of a specific fetus remains a matter of medical judgment to be determined by the attending physicians in a manner consistent with good and accepted obstetric practice.
By the end of the 1980s, a pattern in Court decisions could be discerned in which abortion regulations that (1) significantly burdened a woman’s decision; (2) treated abortion differently from other, similar medical or surgical procedures; (3) interfered with the exercise of professional judgment by the attending physician; or (4) were stricter than accepted medical standards were struck down by the Court. Privacy as a constitutional right became a one-word description of liberty to make decisions regarding marriage, procreation, contraception, sterilization, abortion, family relationships, child rearing, and sexual relationships free of governmental interference.
One strategy to change Roe was to change the composition of the Supreme Court by appointing anti- Roe justices. Because of new justices on the Court in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey , the Court had its first real opportunity to overturn Roe v. Wade. Many Court observers thought it would. Instead, in an unusual procedure for the Court, three potentially anti- Roe justices—Sandra Day O’Connor, David Souter, and Anthony Kennedy—joined together to write a joint opinion confirming the “core holding” of Roe . They were joined in most of their opinion by two justices, Harry Blackmun and John Paul Stevens, who would have simply upheld Roe, making this a 5-to-4 decision. Most centrally, the authors of the joint opinion believed that although the pressure to overrule Roe had grown “more intense,” doing so would severely and unnecessarily damage the Court’s legitimacy by undermining “the Nation’s commitment to the rule of law.” Specifically, the three justices wrote that they were reaffirming “ Roe ‘s essential holding” that before the point of viability, a woman has a right to choose abortion without undue state interference, and that after the point of viability, the state can restrict abortion “if the law contains exceptions for pregnancies which endanger the woman’s life or health,” and that “the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” The Court applied these principles to uphold laws that mandate much more detailed requirements for abortion, as well as a mandatory 24-hour waiting period, but it struck down a spousal-notification requirement as an “undue burden.”
Thus, after Casey, Roe stood for the proposition that pregnant women have a “personal liberty” right—“privacy” went unmentioned—to choose to terminate their pregnancies before the point of viability and that the state cannot “unduly burden” such a right by erecting barriers that effectively prevent the exercise of that choice. Of course, a major problem was definitional: burdensome regulations were acceptable, “unduly burdensome” ones were not; but it was not clear what qualified as which. Put another way, the state could demonstrate its concern for fetal life by requiring that physicians make women seeking abortions jump through new and burdensome hoops—including offers of detailed and accurate information on abortion, the status of the fetus, adoption, sources of help for childbirth, and a 24-hour waiting period—as long as doing so did not “unduly burden” women by actually preventing them from being able to make a decision to have an abortion.
With the loss of a realistic expectation in 1992 that the Court would overrule Roe wholesale without significant changes in the Court’s membership, anti- Roe advocates switched strategies dramatically, focusing on criminalizing a specific procedure that they believed would horrify most Americans and that they labeled “partial-birth abortion.” The first such bill passed Congress in 1996 and was vetoed by President Bill Clinton because the prohibition did not contain an exception for the health of the woman, as required by Roe and Casey. In 1997, this time with the support of the American Medical Association, the bill passed Congress again. President Clinton vetoed it, again for failure to contain a health exception.
Proponents of the ban took their cause to the individual states, most of which enacted substantially identical laws. In 2000, Nebraska’s partial-birth abortion law reached the Supreme Court. The Nebraska law carried a penalty of up to 20 years in prison for physicians who performed the procedure. The law reads in relevant part:
No partial-birth abortion shall be performed in this state, unless such a procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
[A “partial-birth abortion” is] an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. … [The statute further defines the phrase “partially delivers vaginally a living unborn child before killing the unborn child” as] deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.
This ban applied throughout pregnancy and had no exception to protect the woman’s health, only to save her life. In a 5-to-4 opinion in Stenberg v. Carhart, the Court found this law unconstitutional for two reasons. First, the description of the banned procedure was too similar to dilation and evacuation (D&E), another procedure that was permitted by the law and widely used for second-trimester abortions. Therefore this law would discourage physicians from using the lawful procedure, which would place an undue burden on their patients. Second, the law failed to provide an exception for instances in which the procedure was deemed necessary by the physician to protect the woman’s health, as required by Roe and Casey. Justice John Paul Stevens, in his concurring opinion, noted that the extreme anti- Roe rhetoric as exemplified in the partial-birth abortion debate obscured the fact that during the 27-year period since Roe was decided, the core holding of Roe “has been endorsed by all but 4 of the 17 Justices who have addressed the issue.”
A notable dissenting opinion was written by Justice Kennedy, who had specifically endorsed the core of Roe in Casey. Kennedy argued that the outlawing of “partial-birth abortion” was consistent with Casey because of the interest the state has throughout pregnancy in protecting the life of the fetus that may become a child. In his view, the banned procedure conflates abortion and childbirth in a way that “might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life of the human fetus.” He also argued that such a ban was not unduly burdensome to women because state legislatures can determine that specific medical procedures, like this one, are not medically necessary.
Justice Stephen Breyer, the author of the Stenberg majority opinion, stated that a more precise law, with a health exception, could be constitutional. In 2003, Congress passed a slightly revised law. It did not contain a health exception, but its preface did contain a declaration that the outlawed procedure was never medically necessary for the health of the woman. President Bush signed it into law on November 5, 2003. By the time the Court ruled on the constitutionality of this law in April 2007, in Gonzales v. Carhart , two important changes had occurred in the composition of the Court: a new chief justice, John Roberts, replaced the consistently anti- Roe Chief Justice William Rehnquist; and Justice Samuel Alito replaced Justice Sandra Day O’Connor, who was consistently pro- Roe (as interpreted by the joint opinion in Casey ). The federal law provides that:
(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. …
(b) (1) The term “partial-birth” abortion means an abortion in which the person performing the abortion
(A) Deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
(B) Performs the overt act, other than completion of delivery, that kills the partially delivered living fetus [emphasis added].
The Court decided, 5 to 4, that this new law was constitutional. Justice Kennedy wrote the majority opinion for himself and for Justices Antonin Scalia, Clarence Thomas, and the two new justices. In it he substantially adopts his dissenting opinion in Stenberg as the Court’s new majority opinion. Although he concludes that his decision is consistent with Stenberg, all three U.S. District courts and all three Courts of Appeal that had examined this federal law found it unconstitutional under the principles in Casey and Stenberg, primarily because of the vagueness of the definition and the lack of a health exception. As to the vagueness argument, Kennedy writes that the new law is no longer vague because it clarifies the distinction between the prohibited procedure, which he calls “intact D&E,” and standard D&E abortions because the former requires the delivery of an intact fetus, whereas the latter requires “the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix.” In addition, the new federal law specifies fetal landmarks (e.g., the “navel”) instead of the vague description of a “substantial portion” of the “unborn child.”
Because the law applies to fetuses both before and after the point of viability, Kennedy concedes that under Casey the law would be unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Kennedy finds Congress’s purpose is twofold: first, lawmakers wanted to “express respect for the dignity of human life” by outlawing “a method of abortion in which a fetus is killed just inches before completion of the birth process,” because use of this procedure “will further coarsen society to the humanity of not only newborns, but of all vulnerable and innocent human life. …” Second, Congress wanted to protect medical ethics, finding that this procedure “confuses the medical, legal, and ethical duties of physicians to preserve and promote life. …”
The key to Kennedy’s legal analysis is his conclusion that these reasons are constitutionally sufficient to justify the ban because under Casey : “the State, from the inception of pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child [and this interest] cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing the doctor to choose the abortion method he or she might prefer.” Kennedy then goes on to write that “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” and that “while no reliable data” exist on the subject, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. … Severe depression and loss of esteem can follow.” Such regret, Justice Kennedy believes, can be caused or exacerbated if women later learn what the procedure entails, suggesting that physicians fail to describe it to patients because they “may prefer not to disclose precise details of the means [of abortion] that will be used. …”
The final, critical issue is whether the prohibition would “ever impose significant health risks on women” and whether physicians or Congress should make this determination. Kennedy picks Congress: “The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community …. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.” Furthermore, Kennedy argues, the law does not impose an “undue burden” on women for another reason: alternative ways of killing a fetus have not been prohibited. In his words, “If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.”
Writing for the four justices in the minority, Justice Ruth Bader Ginsburg, the only woman justice on the Court at the time, observes, “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians [and Gynecologists] (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe , the Court blesses a prohibition with no exception safeguarding a woman’s health.” Ginsburg argues that the majority of the Court has overruled the conclusion in Stenberg that a health exception is required when “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health. …” This conclusion, bolstered by evidence presented by nine professional organizations, including the ACOG, and conclusions by all three U.S. District Courts that heard evidence concerning the Act and its effects, directly contradicted the congressional declaration that “there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.” Even Justice Kennedy agreed that Congress’s finding was untenable.
Justice Ginsburg concludes that this leaves only “flimsy and transparent justifications” for upholding the ban. She rejects those justifications, arguing that the state’s interest in “preserving and promoting fetal life” cannot be furthered by a ban that targets only a method of abortion and that cannot save “a single fetus from destruction” by its own terms but may put women’s health at risk. Ultimately, she believes that the decision rests entirely on the proposition, never before enshrined in a majority opinion and explicitly repudiated in Casey, that “ethical and moral concerns” unrelated to the government’s interest in “preserving life” can overcome what had been considered fundamental rights of citizens. The majority seeks to bolster its conclusion by describing pregnant women as in a fragile emotional state that physicians may take advantage of by withholding information about abortion procedures. Justice Ginsburg concludes that the majority’s solution to this hypothetical problem is to “deprive women of the right to make an autonomous choice, even at the expense of their safety.” She continues, “This way of thinking [that men must protect women by restricting their choices] reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” Ginsburg further notes that the majority simply cannot contain its hostility to reproductive rights as articulated in Roe and Casey, calling physicians “abortion doctors,” describing the fetus as an “unborn child” and as a “baby,” labeling second-trimester abortions as “late term,” and dismissing “the reasoned medical judgments of highly trained doctors … as ‘preferences’ motivated by ‘mere convenience.’”
The major change in the law this opinion signals is the new willingness of Congress and the Court to discount the health of pregnant women and the medical judgment of their physicians. This departure from precedent was made possible by categorizing physicians as unprincipled “abortion doctors” and infantilizing pregnant women as incapable of making serious decisions about their lives and health. The majority opinion ignores or marginalizes long-standing principles of constitutional law and substitutes the personal morality of Justice Kennedy and four of his colleagues.
The majority asserts that giving Congress constitutional authority to regulate medical practice is not new but identifies no case in which Congress had ever outlawed a medical procedure. Its reliance on the more than 100-year-old case of Jacobson v. Massachusetts is especially inapt. Jacobson was about mandatory smallpox vaccination during an epidemic, refusal of which was punishable by a fine. The statute had an exception for “children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination,” and the Court implied that a similar medical exception would be constitutionally required for adults. It is not just abortion regulations that have had a health exception for physicians and their patients—all health regulations have.
On the other hand, those who expect Roe to be overturned by this Court may be disappointed. Although Justice Alito has replaced Justice O’Connor and is likely to vote in the opposite direction on Roe -related issues, Justice Kennedy is the new swing vote on the Court, and he insists that he is upholding the principles of Roe v. Wade as reaffirmed in Casey . Just as the question of whether a specific abortion regulation was an “undue burden” was once a determination Justice O’Connor could effectively make for the Court, the meaning of Roe v. Wade is, at least for now, up to Justice Kennedy. The replacement of two pro- Roe justices, Souter and Stevens, with Sonia Sotomayor and Elena Kagan in the Obama administration has made no change in this balance. Nonetheless, there are now three women justices on the Court, and this fact alone will make the Court take women’s rights more seriously.
Abortion Politics and “Obamacare”
President Barack Obama made it clear during the great debate on health insurance reform that he did not want abortion politics to sabotage his legislation. In his September 10, 2009 speech about health insurance reform to a joint session of Congress, he said, “Under our plan, no federal dollars will be used to fund abortions.” Nonetheless, the centrality of abortion in U.S. politics made it inevitable that abortion funding would play a major role in determining whether there was any health insurance reform law at all. The debate revolved around the Stupak amendment in the House of Representatives, which provided that “No funds authorized or appropriated by this Act … may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of rape or incest” (italics added). The House passed this amendment by a vote of 240 to 194, with 64 Democrats voting in favor (the House health care bill itself passed 220 to 215). Many thought that the Catholic bishops who lobbied fervently for passage of the Stupak amendment were the most influential in supporting it. More influential, however, was the previously secret fundamentalist Christian political leadership group known alternately as the Family or the Fellowship, which includes among its members both of the amendment’s main sponsors, Bart Stupak (D-MI) and Joe Pitts (R-PA).
The Stupak amendment was defended as merely continuing the practice created by the Hyde amendment, named after the late Congressman Henry Hyde (R-IL) and attached to every Health and Human Services Appropriations Act passed since 1976; the Hyde amendment has also been added to appropriations legislation for the Defense Department, the Indian Health Service, and federal employees’ health insurance plans. The Hyde amendment prohibits the use of federal funding for “any abortion” or for any “health benefits coverage that includes abortion” unless the pregnancy is the result of “rape or incest” or “would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” Under the Hyde amendment, states may use their own funds to finance abortion services through their Medicaid programs, and 17 states currently do so.
The U.S. Supreme Court has ruled on the constitutionality of limiting government funding for abortion twice. The first case, in 1977, involved a Connecticut regulation that limited state Medicaid funding to “medically necessary” abortions, thus excluding those not necessary to preserve a woman’s life or health. The Court ruled that women have a constitutional right to choose to have an abortion, but the state has no obligation to pay for the exercise of this right and may constitutionally encourage women to continue their pregnancies to term by providing funding for childbirth and not abortion. The state may not constitutionally create obstacles to abortion, but it has no obligation to remove obstacles not of its own making, such as poverty.
Three years after the Connecticut decision, the Court upheld the Hyde amendment, which prohibited federal funding for medically necessary abortions. Under this ruling, even low-income women who would have devastating health outcomes if they continued a pregnancy could not have an abortion paid for by Medicaid. In both cases, the Court ruled that the government could make “a value judgment favoring childbirth over abortion and [implement] that judgment by the allocation of public funds.” Because the federal government did not make the women poor, and because poverty was their obstacle, no constitutional requirement exists for the federal government to fund any abortion. Federal funding is a political question to be decided by Congress.
The U.S. Senate bill on health insurance reform, which Majority Leader Harry Reid (D-NV) created by blending bills from two committees, did not contain the Stupak amendment but specifically excluded federal funding for abortions as prohibited by any federal law—including the Hyde amendment—in effect “6 months before the beginning of the plan year involved.” States must also ensure that “no federal funds pay or defray the cost” of abortion services in new health plans that cover abortion.
Three major questions were raised about the differences between the House and Senate approaches: Did they fulfill Obama’s no-federal-funding promise? Did they follow the Hyde amendment “tradition”? And did they represent good health insurance policy? As for the first question, the Senate version fulfilled the President’s promise by requiring abortion funding to come from sources other than federal tax dollars. This aspect of the provision was denigrated as a “bookkeeping trick,” but even federal employees who pay for abortions with their government salaries are using funds that came from federal tax dollars. As for the second question, the Stupak amendment goes far beyond the Hyde amendment by prohibiting the use of federal tax dollars not only for abortion itself but also for any health plan available on the proposed exchanges that covers abortion. The goal is to limit access to abortion even when no federal funds are being used for it. The third question relates to public health policy. The Hyde amendment institutionalizes the moral view of some members of Congress that even medically necessary abortions should not be considered health care. After the Democrats lost Ted Kennedy’s Senate seat in a special election in Massachusetts—and with it, the 60 votes needed to end a filibuster—the bill previously passed by the Senate became the vehicle for health insurance reform, and a budget “reconciliation” measure (requiring only 51 votes for Senate passage), negotiated by Democratic House and Senate leaders, was used to make modifications to the Senate bill to make it acceptable to the House.
Because the Stupak-Pitts abortion language was not in the Senate bill, it was uncertain whether the 216 House votes needed for passage could be found. Stupak himself ultimately agreed to vote for the Senate bill as long as President Obama signed an executive order agreeing not to use any aspect of the legislation to fund abortions. The bill ultimately passed 219 to 212, which suggests that the votes of Stupak and his colleagues were essential. President Barack Obama signed the executive order on March 24 at a private White House event.
Two abortion-related battles followed: the first directly involved the Affordable Care Act (ACA) and its contraception coverage, the second involved research on human embryos. We deal with the ACA controversy first. The ACA’s goal is to make comprehensive health insurance available to all Americans. For women, this includes the provision of contraception. Under Health and Human Services (HHS)–promulgated regulations, insurance coverage must include 20 specific contraceptives as recommended by an Institute of Medicine (IOM) panel. Two corporations objected to providing four of these contraceptives, two types of intrauterine devices (IUDs) and the emergency contraceptives Plan B (levonorgestrel) and Ella (ulipristal) to their employees because they believed they could induce abortion.
When it got to the U.S. Supreme Court, the case was based not on the Constitution but on a federal statute, the 1993 Religious Freedom Restoration Act (RFRA), which states that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless it] is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that … interest.” For RFRA to be relevant, the term “person” must include for-profit corporations. Corporations are legal fictions created entirely by law to protect the interests of real people, including the shareholders and officers of the corporation. Nonetheless, and surprisingly (at least to us), the Court determined that for-profit corporations were persons under the Act and thus could have religious views that the state had to respect.
This left only two remaining legal issues: first, does the state have a compelling interest in covering all 20 contraceptives, and second, is the method of requiring that they be included in employer-provided health insurance policies the “least restrictive means” to do this? The Court quickly answered the first question yes and moved on to the question of least restrictive means, to which it answered no, because the government could accommodate corporations with religious views by granting them an exemption and creating an alternative funding mechanism for the four contraceptives in dispute. This conclusion got five votes but did not satisfy any of the Court’s three women justices. For them and Justice Stephen Breyer, Justice Ruth Bader Ginsburg wrote a stinging dissent, noting that the “ability to control their reproductive lives” is central to the ability of women to gain equality in “the economic and social life of the Nation.” She also noted that although the majority tried to confine its reasoning to four of the 20 FDA-approved contraceptives, “the Court’s reasoning appears to permit commercial enterprises … to exclude from their group health plans all forms of contraceptives.” This she added was “a substantial burden on women, especially those earning low wages.”
In terms of health care, the reaction of the ACOG to the opinion seems just about right to us: “This decision inappropriately allows employers to interfere in women’s health care decisions … which should be made by a woman and her doctor, based on the patient’s needs and her current health.” The ACOG went on to underline that contraceptives and family planning are mainstream medical care and should be treated as such. In their words, “access to contraception is essential women’s health care.”