Contraception et al.: Compelling 'Public Health' Interests?

By Michael Bradley
July 8, 2014

In its recent decision in Burwell v. Hobby Lobby, the Supreme Court did not decide the question of whether the federal government has a "compelling interest" to coerce nearly all employers to provide objectionable services to their employees via the Department of Health and Human Services (HSS) insurance mandate.

While the owners of Hobby Lobby objected only to the handful of chemical contraceptives that sometimes act as abortifacients, religious employers nationwide have objected to other facets of the mandate, including contraceptives proper (as in Notre Dame's case) and sterilization services. In assuming for the sake of the argument that the provision of these services does constitute a "compelling (government) interest," the Court reserved the question for another day.

The court in Burwell described the government's interest in providing the objectionable services as (among other things, including "gender equality") a matter of "public health."  The government seems to have taken the stance that provision of these services without co-pays or deductibles is a compelling interest because these services are an essential component of healthcare generally, the provision of which is certainly a "compelling" interest. A question that the court will not ask, but which merits asking, is whether contraceptives, abortifacients, and sterilization services can accurately be considered healthcare services at all.  In other words: Can we consider these services essential to healthcare without asking if they conduce toward good health, and ask even prior to that what health itself is?

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The World Health Organization defines health thus: "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."

I read this definition in a conjunctive sense: Health is more than each of the dimensions mentioned, but not less. Healthy individuals are well mentally and socially as well as physically; physical wellness consists in but is more than the absence of disease or infirmity.

Disease and infirmity are conditions that alter, corrupt, or block the "healthy" functioning of this or that organ, system, muscle group, and so forth. Physical or biological health—the human good realized by way of coordination between the various systems and organs (musculoskeletal, neurological, respiratory, immune, nervous, etc.; heart, brain, skin, lungs, kidney, etc.) toward the preservation of the single biological organism, the person—is characterized at a basic level by the elimination of conditions that impede that coordination.

None of the aforesaid objectionable services survives this definition of physical or biological health. For neither abortifacients, contraceptives (defined as chemicals ingested for the purpose of blocking conception, not as a means of alleviating some illness or condition), nor sterilization services "maintain," "restore," or otherwise make whole the "health" of the organism.

In reality, these services each and all are medical decisions meant to enable the living out of a personal lifestyle choice, one free of the burdens of pregnancy and parenthood. As such, the objectionable services resemble more elective cosmetic or plastic surgery: One does not elect such procedures with the intent to restore some bodily element from pathological status for the sake of health; and, insofar as such procedures are understood to enable or enhance a chosen lifestyle or status, one should pay one's own way for them.

But the analogy breaks down in that while elective cosmetic or plastic surgery may not necessarily violate the proper functioning of the parts so affected, the objectionable HHS services do just that. Pregnancy itself is not a disease; it itself is not an illness or an infirmity, though pregnant women are susceptible to particular ailments or illnesses. Pregnancy is the biological result of certain biological acts.

As observed above, however, the good of health is not necessarily violated when the "proper function" of a particular body part is violated or blocked. This "naturalistic fallacy," all too often invoked in defense of sexual ethics, misses the mark. Rather, health is the good realized in and through the coordination of the several distinct systems toward the preservation and flourishing of the single biological organism of which those systems are constitutive.

For while a medical procedure such as amputation clearly violates the "proper function" of, say, the arm by removing the arm, amputation is therapeutic in a holistic sense: One "part" (a limb) is severed precisely for the sake of the preservation of "the whole" (the organism of which the limb was a constitutive part). Similarly, surgical cutting in preparation for transplant "violates" the purpose of skin, but does so for the sake of the good of the whole.

But this is not true of abortifacients, contraceptives, or sterilization services, all of which terminate or seek to prevent pregnancy, not with the intent to insure or promote the biological survival of the organism (amputating a limb to prevent the spread of disease)1, or even to (therapeutically, if you will) restore some proper function or other of that organism (breaking a poorly-healed bone in order to reset it properly): but simply to convenience oneself and one's chosen sexual activities, to actualize a horizon of personal decisions that are not medical in nature at all.

One may object that a steady diet of contraceptives conduces toward one's psychological, mental, or emotional "well-being" by preventing what would be onerous or untimely pregnancies, and thus that such a diet qualifies as "health" by either of the above definitions of "health."

This argument fails. The WHO rightfully registers the "absence of disease or infirmity" as sine qua non of physical and therefore holistic health. Arguing that the inducing of a biological (reproductive) pathology neither for the sake of the biological sustenance of the whole, nor for the sake of strengthening that same organ or system (as in the case of gradual immunizations), but for the sake of a volitional fiat that corresponds to "the autonomy to do as I please," is akin to a man claiming that cutting off his own fingers sets his mind at ease and thus is "healthy" for him. (In both cases medical complications are likely to arise as a result of the "operation," and in both a pathology is induced. In neither is physical/biological health realized or advanced.) Neither does a contraceptive diet conduce toward one's participation in the good of health by the second definition.

This argument does not establish the morality of these services per se. These services can be "non-healthy" while not unhealthy, just as plastic surgery may be non-healthy yet not unhealthy.2 My argument is that the services fail to meet the positive standard of health, not that they violate the negative standard of "un-health."

The services that the HHS seeks to provide to all employees are popular ones. They do indeed enable and enhance one's ability to pursue a (sexual) lifestyle characterized by the introduction and preservation of a biological pathology (effective sterilization). Such services should be no more outlawed than elective cosmetic or plastic surgery services, and as noted above, trained medical professionals ought to be closely consulted in the event that one does elect to make use of such sexual-lifestyle services.

But none of this alters the reality that abortifacients, contraceptives, and sterilization services are really not dimensions of "healthcare," for they do nothing to sustain or restore health. They constitute personal lifestyle decisions, and as such, a compelling governmental interest in upholding “public health” does not pertain to them.