Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Saturday, November 2, 2013

DC Circuit Finds Government has little Interest in Women's Health and Autonomy

The DC Circuit held yesterday in Gilardi v. Dep't of Health & Human Services that a private, Catholic employer does not have to comply with the contraceptive mandate of the Affordable Care Act due to the owners' religious liberties.  The court's discussion of women's health interests and the government's inability to protect those interests  is troubling: 
The government's invocation of a “woman's compelling interest in autonomy” is even less robust. The wording is telling. It implies autonomy is not the state's interest to assert. Nevertheless, the government, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972), claims the mandate protects a woman's ability to decide “whether to bear or beget a child.” 
Our difficulty in accepting the government's rationale stems from looking at the Eisenstadt quote in its entirety: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matter so fundamentally affecting a person as the decision to bear or beget a child.” Id. (emphasis added). Regardless of what this observation means for us today, it is clear the government has failed to demonstrate how such a right—whether described as noninterference, privacy, or autonomy—can extend to the compelled subsidization of a woman's procreative practices....
Equally unconvincing is the government's assertion that the mandate averts “negative health consequences for both the woman and the developing fetus.” From the outset, we note the science is debatable and may actually undermine the government's cause. For the potential mother, as one amicus notes, the World Health Organization classifies certain oral contraceptives as carcinogens, marked by an increased risk for breast, cervical, and liver cancers. Br. of the Breast Cancer Prevention Institute, at 8–9. On the other hand, the contraceptives at issue have been approved by the Food and Drug Administration, supported by research touting their benefits. SeeOp. of Edwards, J., at 30. This tug-of-war gives us pause because the government has neither acknowledged nor resolved these contradictory claims.

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