In January this year the U.S. Government’s Department of Health and Human Services (HHS) announced that a very narrow scope would be given to a religious exemption to the general August 2011 mandate that every employer’s health insurance plan include contraceptive drugs, some post-conception abortifacient drugs, sterilization, and family planning counseling. The ensuing commentary and the filing of lawsuits have focused on the infringement of religious liberty under the U.S. Constitution’s First Amendment. My focus here is the U.S. Federal Government’s interest in people’s infertility.

In this public debate, supporters have argued that contraception is important for women’s health. Contrary to the matter-of-factness with which this claim is treated by the media, it isn’t obvious. If it were obvious, there would be no need for the voluminous HHS reports on the subject which I examine here. My bottom line after wading through two reports is this: there is no rational basis to support a federal mandate.

Obamacare, enacted on March 23, 2010, contained a provision that required HHS to seek the recommendations of a learned society on preventive care services for women that would mandate coverage and would prohibit insurers from imposing a charge (that is, without co-pays or deductibles). In July 2011, the Institute of Medicine (IOM) issued its recommendations. The full 235-page IOM Committee’s report, Clinical Preventive Services for Women: Closing the Gaps (2011) is available online. The discussion of its recommendation to HHS concerning contraception is just eight pages (pages 102-109).

A couple of general points about this 2011 IOM Report:

In its eight pages, the most notable study upon which this document relies is another, 380-page, IOM report (“the Report”) from 1995: The Best Intentions: Unintended Pregnancy and the Well-Being of Children and Families. One would expect that a medical committee would first identify a medical, physical condition – an illness, a disease that results in mortality or morbidity. And then it would consider possible causes for this illness or disease. The IOM used this sequence in its 2011 report with regard to diabetes, STDs and cervical cancer. But when it treats pregnancy, the IOM in both its reports does the reverse. It first describes a condition and then its effects.

In fact, the IOM does not really describe any medical condition whatsoever. Instead, it describes a subjective condition. In defining the subjective condition of “unintended pregnancy” there is no medical science. It is sociological, based on polling. To its credit, IOM is explicit about the methodological problems in these polls. (1995 Report, pp. 21-25; 64-66):

The 1995 IOM Report recommended that “researchers develop more refined and differentiated measures of intention status.” Sixteen years later, the 2011 IOM document does not address this issue. (p. 102)

The Stated Consequences of Unintended Pregnancies The 2011 Report devotes only two paragraphs to the consequences of unintended pregnancy. In its opening sentence it includes a huge qualifier: “The consequences of an unintended pregnancy for the mother and the baby have been documented, although for some outcomes, research is limited.” (p. 103) The IOM 1995 Report (hereafter “the Report”) identifies five consequences of unintended pregnancies. The second and fifth, and the third and fourth, are very closely related. 

First Consequence: Abortions. (pp. 51-54) The Report asserts that reducing the number of unintended pregnancies will reduce the number of abortions and that’s good for women, it says, because it will cut back on the physical and psychological complications posed by abortion.  

Comment No.1: There are statistics that show, however, that increased use of contraceptives does not reduce abortions while less use of contraceptives reduces abortions. Increased use of contraception leads to increased sex which leads to increased absolute numbers of failures in contraception and, therefore, an increase in unintended pregnancies. This argument was made by Professor Helen Alvare on “The Diane Rehm Show” of July 11, 2011, in the presence of another guest, Dr Linda Rosenstock, the chair of the IOM committee and Dean of the School of Public Health at the University of California, Los Angeles (UCLA). Professor Alvare didn’t say this but, yes, people will more readily climb Mount Everest or ski back country if they have a satellite telephone. In the literature, it’s called “risk compensation”.

Comment No.2: The Report later argues that the mother of an “unintended pregnancy” is less likely to obtain early prenatal care and that such women “may not be able to take the fullest advantage of the explosion of research in human genetics.” (p. 78) One such advantage, the Report states, is the abortion of an unborn child with congenital issues. (p.78, n.6) The “explosion of research in human genetics” allows for a greater number of abortions – whether the pregnancy is unintended or intended.  

Second and Fifth Consequences: “Demographic Attributes” (pp. 55-63) A review of this section of the Report reveals that it consists of an argument against teenagers, older women, or unmarried women having any children, intended or not. No reason is given for singling out unintended children. 

Third and Fourth Consequences: A Variety of Bad Outcomes for Parents or Child. (pp. 66-76) This is the nub of the Report. Impact on Parents: The Report describes a parade of horribles for parenthood itself, regardless of whether conception was intended or not. Having a child “can cause severe disruption to other life plans, decreased resources for children already born, temporary or permanent lowering of educational and career aspirations, and a threat to present and future economic security. Its effects can be surprisingly far-reaching, contributing, for example, to the problem of insufficient child care in the United States. . .can place a strain on parental relationships. . . “ (p. 74) Prenatal Care: The Report states that women who experience unwanted pregnancies, more so than mis-timed ones, will be less likely to get prompt prenatal care. (pp. 66-68)

Comment: Contraception reduces but does not eliminate the prospect of becoming pregnant. It behooves women who engage in sex, and ipso facto may become pregnant despite the use of contraception, to pay attention to their bodies and anticipate the possibility of becoming pregnant. It is normal for human beings to plan for the foreseeable consequences of their actions. Low Birthweight: One would expect a medical report to list the precise medical causes of preterm delivery or slow fetal growth, but it does not. [The precise medical causes are: multiple simultaneous pregnancies (e.g. twins, triplets), maternal diseases (diabetes, heart defects, kidney diseases), issues concerning the uterus, cervix or placenta, poor nutrition, stress, smoking, alcohol or drugs.] The next step in a medical report would be to rank these specific causes, and then to link them, if possible, to unintended pregnancy.

Comment: The only link between unintended pregnancy and low birthweight is the failure of women to expect the possibility of becoming pregnant when they engage in sex.

Conclusion The first three chapters (100 pages) of the 1995 IOM Report seek to define “unintended pregnancy” and the consequences of unintended pregnancy. As we have seen, there is no rational basis for claiming that unintended pregnancies, any more than intended pregnancies, are a public health problem, much less one that necessitates a federal mandate imposed on the private sector.

James M. Thunder is an attorney in Washington, D.C. He is former general counsel of Americans United for Life, a pro-life law firm headquartered in Chicago, Illinois. This article is a short version of his 5,400-word article on the same subject published on June 13.