A Public Health Ethics and Policy Analysis of the Contraception Mandate

Abstract

This paper evaluates the contraceptive mandate as a public health initiative. It applies two fairly standard analytical frameworks used to scrutinize public health ethics, policy, and law issues. The first is a framework for analyzing public health ethics and deliberating about public health activities offered by a team of bioethicists and public health law and policy experts that included James F. Childress, Lawrence O. Gostin, and others. The team’s framework includes a set of general considerations (including producing the maximal balance of benefits over harms, distributing benefits and burdens fairly, ensuring participation by the public and affected parties, respecting autonomous choices, disclosing information, speaking truthfully, and maintaining trust) and five justificatory conditions (i.e. effectiveness, proportionality, necessity, least infringement, and public justification). The second is the method presented by Lawrence O. Gostin for analyzing particular public health activities from a law and policy standpoint. In his systematic evaluation of public health interventions, he has proposed identifying risks, demonstrating intervention effectiveness, assessing economic costs, weighing burdens on individuals, and judging the fairness of the policy, as well as ensuring transparency and applying the precautionary principle. The analysis performed in this paper reveals shortcomings with both the mandate and the rulemaking processes used to develop the regulations and the narrow religious-employer exception. The analysis also illuminates the concerns and the interests of both the proponents and the opponents of the mandate, and it reveals the central role that ideological perspectives play in the utilitarian balancing that lies at the heart of both frameworks. Before turning to this analysis, however, this paper reviews the legislative and regulatory developments that led to the contraceptive mandate and provides an overview of the litigation challenging the mandate. After applying these two analytical frameworks, this paper argues that the Administration should reinitiate the rulemaking process and proceed in a manner that is ideologically neutral, advances the full range of justice interests, respects the liberty interests and consciences of individuals, for-profit businesses, and nonprofit organizations, is transparent, and maintains public trust.