One Big Thing Everyone Is Missing in Hobby Lobby

The ruling is not just about sex, it’s about health.

SYDNEY, AUSTRALIA - FEBRUARY 22: A man wears a teal ribbon in honor of women who have lost the battle with ovarian cancer on February 22, 2011 in Sydney, Australia. For the first time the Sydney Opera House was lit teal for the launch of Teal Ribbon Day, to represent women with Ovarian Cancer. 
National Journal
Lucia Graves
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Lucia Graves
July 3, 2014, 7:36 a.m.

Justice Ruth Bader Gins­burg, in her scath­ing dis­sent of the Su­preme Court’s 5-4 rul­ing in the Hobby Lobby case this week, made an im­port­ant point about wo­men’s health that’s been al­most en­tirely over­looked else­where: For many Amer­ic­an wo­men, the birth-con­trol pill has noth­ing to do with con­trolling births. It’s a life-sav­ing medi­cine.

“The cov­er­age helps safe­guard the health of wo­men for whom preg­nancy may be haz­ard­ous, even life-threat­en­ing,” wrote Gins­burg. “And the man­date se­cures be­ne­fits wholly un­re­lated to preg­nancy, pre­vent­ing cer­tain can­cers, men­stru­al dis­orders, and pel­vic pain.”

The de­cision, which found that closely held cor­por­a­tions may re­fuse for re­li­gious reas­ons to cov­er con­tra­cept­ives in their health plans, may af­fect mil­lions of wo­men who suf­fer from a vari­ety of med­ic­al con­di­tions. These wo­men de­pend on the pill to reg­u­late their hor­mones and do everything from ease pain to re­duce the risk of can­cer. These med­ic­al be­ne­fits have noth­ing to do with sex or the pre­ven­tion of preg­nancy, which have be­come the sole fo­cus of polit­ic­al de­bate around the de­cision. Even if these wo­men nev­er have sex once in their lives, they need to be on birth con­trol.

The pill is a key treat­ment for at least three ma­jor med­ic­al prob­lems. First, there are the wo­men with Poly­cyst­ic Ovary Syn­drome. Don’t be fooled by the ob­scure-sound­ing name—it is the single most fre­quent en­do­crine prob­lem in wo­men of re­pro­duct­ive age, af­fect­ing 5 to 10 per­cent of the fe­male pop­u­la­tion. Hor­mone reg­u­la­tion, via or­al con­tra­cept­ives, is the best known treat­ment. Without it, these wo­men—about 5 mil­lion Amer­ic­an wo­men of re­pro­duct­ive age—may suf­fer from a range prob­lems, from ir­reg­u­lar bleed­ing and obesity to the de­vel­op­ment of ovari­an cysts and in­fer­til­ity.

Birth con­trol pills are also used to treat en­do­met­ri­os­is, which will af­fect an es­tim­ated 11 per­cent of wo­men in their life­time, ac­cord­ing to the Na­tion­al In­sti­tutes of Health. For most of these wo­men, birth con­trol is a way to avoid pain and even sur­gery or a hys­ter­ec­tomy.

Re­search has shown tak­ing birth con­trol pills for more than a year re­duces the risk of en­do­metri­al can­cer, which forms in the tis­sue lin­ing of the uter­us and kills thou­sands of Amer­ic­an wo­men each year. For these wo­men, the pill is a po­ten­tially life-sav­ing can­cer-pre­vent­ive treat­ment. The an­nu­al in­cid­ence of en­do­metri­al can­cer is roughly 40,000, ac­cord­ing to es­tim­ates from SEER, a na­tion­al can­cer data­base.

While a minor­ity of wo­men suf­fer from these en­do­crine dys­func­tions, every wo­man is at risk for de­vel­op­ing ovari­an can­cer with­in her life­time. Ovari­an can­cer is one of the most com­mon deadly can­cers, killing more than half of vic­tims with­in five years of dia­gnos­is, and the pill is the best known way to de­crease the risk of de­vel­op­ing it. Re­search has shown that tak­ing birth con­trol pills for one year de­creases a wo­man’s risk by 10 to 12 per­cent, and tak­ing them for more than five years re­duces risk by ap­prox­im­ately 50 per­cent.

“When a wo­man is dia­gnosed, most wo­men are in stage 3 or stage 4,” Calaneet Balas, the CEO of the Ovari­an Can­cer Na­tion­al Al­li­ance told Na­tion­al Journ­al. “This is a very deadly can­cer, so it’s really im­port­ant to our or­gan­iz­a­tion that wo­men have every weapon pos­sible against this kind of can­cer, be­cause the out­comes are not great right now.”

But you would nev­er know any of that from read­ing the Su­preme Court’s ma­jor­ity opin­ion in Bur­well v. Hobby Lobby Stores, or from the ex­tens­ive me­dia de­bate sur­round­ing the de­cision. One of the few ex­cep­tions was Zoe Fen­son’s first-per­son ac­count in The New Re­pub­lic of her ex­per­i­ence with PCOS.

But des­pite the fact that there are mil­lions in Amer­ica like Fen­son, there was not a single men­tion of can­cer or gyneco­lo­gic dis­orders dur­ing the Su­preme Court’s or­al ar­gu­ments (the lead at­tor­neys on both sides were men). Nor was there any men­tion of them in the Court’s ma­jor­ity opin­ion (all five justices who voted in fa­vor were men).

The prob­lem was not, however, that the justices hadn’t been edu­cated on the sci­ence. An amicus brief filed on be­half of the Ovari­an Can­cer Na­tion­al Al­li­ance, one of more than 80 filed to the Court, warned of “wide-reach­ing med­ic­al con­sequences.” Be­cause there is cur­rently no way to re­li­ably de­tect ovari­an can­cer at an early stage, the brief ex­plained, pre­ven­tion re­mains the primary weapon against this dev­ast­at­ing dis­ease.

Michelle Kisloff, a part­ner at Hogan Lov­ells who cowrote the brief, said she was dis­ap­poin­ted but not sur­prised that the is­sue didn’t come up—the de­bate was mis­framed as a con­tra­cept­ive de­bate from the be­gin­ning, she said.

“We’ve tried to re­cast that de­bate to ori­ent the Court to the fact that there’s more go­ing on here than preg­nancy and con­tra­cep­tion, but ul­ti­mately the Court went with the way Hobby Lobby had char­ac­ter­ized it,” she ad­ded.

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