New York Times Misses the Story on the HHS Contraception Mandate

by Michael J. New

Last Monday, the New York Times published a story criticizing the efforts of Trump-administration appointees Katy Talento and Matthew Bowman, who are working to undo the Health & Human Services Department’s contraceptive mandate. The mandate was put in place during the Obama administration and requires that health-insurance plans cover all contraceptives free of cost to consumers. Both Talento and Bowman have been involved with past political and legislative efforts to oppose the HHS mandate. Talento, a White House policy aide, has a Masters degree in epidemiology from Harvard and has written about the health effects of oral contraceptives. Bowman, an HHS appointee, was a lawyer for Alliance Defending Freedom. He represented several religious organizations in lawsuits against the HHS contraceptive mandate.

Unsurprisingly, the Times article does a very poor job explaining why social conservatives are seeking to undo the HHS mandate. Much of the piece rehashes various public-health debates about whether hormonal contraceptives pose health risks to women. The Times concedes that there is research showing that oral contraceptives may slightly increase the risk of breast, cervical, or liver cancer. However, based only on the testimony of one academic, the Times dismisses concerns that oral contraceptives may increase the risk of either miscarriages or infertility.

However, the health effects of oral contraceptives have little to do with why social conservatives are trying to undo the HHS mandate. The main reason for the opposition is the fact that the mandate violates the conscience rights of religious employers who do not wish to pay for their employees to receive certain types of contraceptives. In particular, the government has even agreed that some FDA-approved contraceptives — included among those that religious employers would be forced to cover — can work as abortifacients. The Times article vaguely mentions that some conservatives view the mandate as an example of “federal overreach,” but the piece never once mentions these legitimate concerns of religious employers.

Similarly, the article makes little mention of the Supreme Court’s recent rulings on the subject. In 2014, the U.S. Supreme Court ruled in Burwell v. Hobby Lobby that the Religious Freedom Restoration Act (RFRA) exempted closely held corporations from the contraceptive mandate. In 2016, in Zubik v. Burwell the U.S. Supreme Court considered whether religious institutions other than churches should be exempted. The Supreme Court vacated a previous appeals-court ruling that upheld the HHS mandate and returned six consolidated cases back to their respective courts of appeals. Additional litigation over the HHS mandate is still pending. If the mandate is undone, it would render much of this litigation moot.

The Times does little to engage the important question of whether or not the HHS mandate has a public-health benefit. There is little research to suggest that the HHS mandate does anything to improve public health. After all, separate studies by Guttmacher and the CDC show that only a very small percentage of sexually active women forgoes contraception due to either cost or availability. There is also a very broad body of research showing that policy efforts to encourage contraceptive use — whether with mandates, subsidies, or legalization — are ineffective at best and counterproductive at worst. My own research on the 28 state-level contraceptive mandates found that they did not have a statistically significant effect on either state abortion rates or state unintended-pregnancy rates.

The HHS contraceptive mandate is undoubtedly an important issue, but not for the reasons focused on by this New York Times piece. The Times could easily have published a useful, objective article, detailing the legislative and judicial history behind the mandate and presenting the reasons that social conservatives and religious employers oppose the mandate. Sadly, this article is yet another example of how the mainstream media is far more interested in publishing hit pieces on Trump-administration appointees rather than thoughtfully engaging in important public-policy debates with journalistic integrity.

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