Moaddab and colleagues describe in this issue of the Journal the ethical parameters of a long-standing government requirement for obtaining a sterilization operation. Women who choose permanent contraception (sterilization) and want it paid for with public funds (Medicaid) must provide consent to their surgery under specific requirements that do not apply to women who pay for the same procedures with other funds (self-pay, private, or employer-paid health insurance) or men who want permanent contraception. In addition to the ethical principles of beneficence, nonmaleficence, and justice, they argue that the special requirement for women using public funding violates 2 other principals of health care justice: deontological and consequentialist. They convincingly assert the injustice of treating women wanting tubal ligation differently than other patients based on payment source and gender (deontological injustice) and that these women bear greater risks as a consequence (consequentialist injustice).

They go on to present support for these assertions of injustice in postpartum sterilization, which accounts for about half of the half million female sterilization operations done in the United States every year. Men do not have an opportunity for postpartum operations, but for women, childbirth provides a convenient and economical opportunity for permanent contraception. This opportunity is selectively denied to about 60,000 of the women who select it every year because of rules that the public insurance consent process applies to those who need their postpartum sterilizations paid for by Medicaid. Every obstetrician who reads this article will recall patients who did not receive prenatal care (or it came too late) and could not meet the requirement for signing their sterilization consents 30 days in advance, or, even if they signed them, the original forms were not available at the time of delivery. When women cannot present evidence of having met the 30-day requirement, the consequences to them can be severe: half of those who never intended to become pregnant again do so; nearly 20% within a year, clearly an unhealthy interval for both mothers and children. Some of these women have pregnancy-associated illnesses like diabetes and hypertension that make subsequent pregnancies risky; a “postpartum tubal” is the easiest (and cheapest) way for them to avoid recurring illness. The authors cite several reports of the health and economic consequences of desired postpartum sterilization requests that are not granted due to the unjust consent requirements of public funding. These reports demonstrate that the costs of denying postpartum sterilizations accrue not only to the women who wanted but did not receive them, but also to the public whose insurance program requires an unjust consent process that denies women optimal health care and reproductive control.

The implementation of the Affordable Care Act (ACA) is a critical time to reconsider the inequity Moaddab and colleagues describe. ACA requires that preventive health services such as contraception be provided without patient payment because of the broad individual and public benefits the Institute of Medicine has concluded they provide. Eliminating copays for these services ought to decrease inequity in health care by making contraception equally available to everyone, but unless the current federally mandated sterilization consent process is amended as Moaddab and colleagues suggest, women who use federal funds will continue to be treated unjustly (and deprived of optimal health) despite the intent of the ACA.

Access to timely and affordable permanent contraception is not the only example of deontological and consequential injustice in women’s health care. Many of the consent laws states enacted over the past few years are unjust for similar reasons. Some of these require that women who cannot afford to leave their home states to terminate pregnancies that may threaten health or welfare must comply with waiting periods after giving consent that deny them a choice of methods (medication vs surgical termination), subject them to the increased risks of complications if second-trimester procedures are delayed, or prevent them from terminating their pregnancies altogether depending on the duration of gestation or availability of providers. (Several state laws also require that information given at the time of consent include state-mandated, but medically inaccurate, misinformation about purported health effects of pregnancy termination such as breast cancer risk, medication abortion drugs, and mental health problems, but that injustice is uniquely imposed on women requiring termination, not prevention, of pregnancies.) The deontological injustice of these abortion laws is that wealthier women do not have to wait or listen to frightening nonsense. They can fly to other states. There are no examples of men being subjected to equally burdensome consent processes. The consequential injustice is that women who must provide their consent under these laws have their operations delayed, which, in some cases, limits their alternatives and increases the risks of complications. In the consent process, they are misinformed about their health risks, causing them anxiety or leading them to continue pregnancies that pose risks to their health incomparably greater than those of timely interruption.

Some of these unjust abortion consent laws are already enforced; others are in dispute in the courts. Despite opposition to them by most obstetrician-gynecologists and their professional organizations, judicial resolution is not likely because abortion remains a politically exploited and religious issue. While the religious aspect applies also to postpartum sterilization because it is denied to women delivering in Catholic hospitals regardless of payer, politics should not be an obstacle to righting this particular injustice. Individual obstetricians and their professional organizations should protest the injustice, describe the health and financial costs of the current consent process, and prevail on government health care officials to change the regulations. Reading the arguments of Moaddab and colleagues will provide excellent background for official deliberations.