Liberal Heroine Justice Ginsburg’s Dissent Has Little Basis in Social Science

by Michael J. New

Justice Ginsburg’s dissent in this week’s Hobby Lobby case has been receiving a considerable amount of attention from all quarters, and adulation from the left. In her dissent, Ginsburg states that the Affordable Care Act “furthers compelling interests in public health and women’s well being.” She goes on to state that “those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. Unfortunately, the empirical evidence that Ginsburg presents is far less compelling than she realizes.

For instance, one aspect of the case that has been largely ignored by the mainstream media is that the insurance plans offered by Hobby Lobby and Conestoga Wood actually cover 16 of the 20 FDA-approved forms of contraceptives. To her credit, Justice Ginsburg does acknowledge this, but she clearly contends that this “does not lessen these compelling interests.” This is mostly because Hobby Lobby and Conestoga Wood do not cover IUDs.

Ginsburg’s emphasis on IUDs is odd. First, IUDs are relatively unpopular among American women. A June 2014 fact sheet published by the Guttmacher Institute finds that only 3.5 percent of women between the ages of 15 and 44 use IUDs. They have several disadvantages compared with other methods of contraception: If a woman using an IUD decides she wants to have children, the IUD needs to be removed by a physician or nurse practitioner. They pose health risks as well — a 2012 article in Mother Jones sympathetic to IUDs acknowledged that there are risks that the IUD would be discharged or that the IUD would perforate the uterine wall upon insertion.

Ginsburg goes on to argue that the contraceptive options available to many women are limited by cost. She cites a 2004 Guttmacher study finding that one third of women would change their contraceptive method if cost were not a factor. However, this study does little to bolster her argument: It didn’t look at IUDs specifically, but did look at Long Acting Reversible Contraceptives (LARCs), which includes IUDs. It found that lower-income women and women with less formal education were actually more likely to use LARCs. It also found a significant percentage of LARC users were interested in switching methods of contraception – consistent with other research that IUDs have a high rate of discontinuance. In other words, eliminating barriers to cost isn’t likely to allow women to get the IUDs they always wanted.

Ginsburg cites two other studies which purportedly show cost as a barrier to the use of IUDs. One is limited because of a small sample size. The other analyzed contraceptive choices of a group of women after an insurance company in California agreed to cover all forms of contraception. This study did find a large percentage increase in the number of women using an IUD. However, the results, which look dramatic when you see a more than 100 percent increase in IUD usage, are less impressive when you consider that an extremely small number of women were using IUDs in the first place. The results indicated that even when completely covered by insurance, IUDs are used by less than 7 percent of women of childbearing age.

Overall, research indicates that the Supreme Court’s decision is affecting the contraceptive choices of an extremely small number of women — and, arguably, that the HHS mandate won’t have a large beneficial effect, either. It is unfortunate that this is lost on both the media and Justice Ginsburg.