NEW YORK (MainStreet) — An apparent glitch in the Affordable Care Act championed by President Obama could put women's health at needlessly greater risk by providing couples with a financial incentive to choose tubal ligation over vasectomy. Because tubal ligation usually entails general or spinal anesthesia and is a more invasive surgery than vasectomy, it's riskier and several times more costly.

Democrats are loath to acknowledge the error in the ACA, commonly called "Obamacare," and Republicans are more eager to scrap the law than correct specific sections. The problem will become more apparent with each graduating class of women entering the workforce and enrolling for new insurance policies.

"It's absolutely, incredibly outrageous and irresponsible to be putting women at risk by promoting a surgery with higher mortality rate, or any mortality in the American context, said Dr. Marc Goldstein, who serves as Distinguished Professor of Reproductive Medicine and Urology at Weill Cornell Medical College of Cornell University and Senior Scientist with the Population Council's Center for Biomedical Research. "In the U.S. there has never been a documented death from vasectomy but every year there are 10 to 20 women in this country alone who have died from tubal ligation surgery."

Goldstein, who is in active practice as surgeon-in-chief of male reproductive medicine and surgery and director of the Center for Male Reproductive Medicine and Microsurgery at the New York Presbyterian Hospital Weill Cornell Medical Center, noted that tubal ligation also has a much higher failure rate than vasectomy.

Goldstein has seen first-hand how national reproductive policies can go awry; he says that in 1986 he was the first American doctor trained in China's "no scalpel" vasectomy technique in exchange for performing reversal surgeries on officials who were forcibly vasectomized under Mao Zedong.

Section 2713 of the ACA requires that private insurers -- except existing policies that are "grandfathered in" -- cover a wide range of preventive health services at no cost to the patient. The law is interpreted by the Department of Health and Human Services and put into practice through its regulations. An amendment by Senator Barbara Mikulski (D, Md.) led to the inclusion of many forms of reproductive healthcare for women, but no parallel provision was made for men. The HHS clarification of the law specifically excluded male condoms and vasectomies. The result is that the seldom-used female condom is covered by the Affordable Care Act, but not the ubiquitous male condom that many women rely on for prevention of pregnancy and disease. More gravely, under the Affordable Care Act tubal ligations are essentially free while vasectomies can still carry a price tag, possibly nudging couples to opt for the more involved surgery.

A legislative correction to cover vasectomies and male condoms would have to come out of the Senate Health, Education, Labor, and Pensions (H.E.L.P.) Committee. When ranking Republican Senator Lamar Alexander's (R., Tenn.) office was questioned by MainStreet about the growing controversy, he said in a statement, "It's time for Democrats and the president to realize this law is an historic mistake and work with Republicans to start over as rapidly and responsibly as possible with step-by-step reforms that reduce the cost of health insurance and expand freedom and choice."

Despite repeated phone calls and emails to the offices of several Democratic Senators over the course of several weeks, including to Senator Mikulski, no Democratic Senators or staff members would speak on the record regarding the gender gap in surgical coverage.

Several did acknowledge that they were unaware of the issue before queries from MainStreet and saw little hope of a legislative fix in the current political climate.

"The women's health benefits included in the Affordable Care Act are an incredibly important part of the law," said one Democratic Senate aid from a large state. "There are certainly other benefits that you could consider adding, but Republicans in the Senate and House would never go along with it. All they want to do is repeal the law."

A staff person for another large-state Democratic senator concurred, "We'd never get the 60 votes needed."

Because it's not abortive, or seen as abortive, surgical sterilization hasn't been a "culture war" battleground for the parties. Indeed, a conservative Republican representative in Louisiana's state government made headlines in 2008 for proposing that welfare recipients be paid to have their tubes tied.

Across income levels, surgical sterilization is the sleeping giant of American birth control. According to the Guttmacher Institute, a reproductive health advocacy nonprofit that spun off from Planned Parenthood in 1968, more than 10.5 million American women take the birth control pill compared to over 14 million Americans who have been surgically sterilized. But it's the proportion of women to men electing to have surgery that concerns health policy analysts and surgeons.

Senior Public Policy Associate Adam Sonfield of the Guttmacher Institute notes that while about 10.2 women have had tubal ligation, only some 3.8 million American men have had vasectomies. While in the developing world women shoulder an even greater share of that risk and responsibility, in Canada -- perhaps the closest demographic match for the U.S. -- vasectomies outnumber tubal ligations.

Educated men are more likely to opt for vasectomies, Goldstein observed, but even in men who understand that erectile function and testosterone production are not at risk, fears persist.

"Some men think they'll be shooting blanks, but most of the fluid isn't even coming from the testes," he said. "In Quebec they had a three-to-one ratio of tubal ligation to vasectomies and they reversed that ratio through policies and a public education campaign."

Puzzlement over why the Affordable Care Act would perpetuate America's tubal ligation bias reaches into the heartland. On the FatWallet price comparison shopping website, a Texan calling himself "lonestarguy" posted, "My wife decided to stop taking hormonal birth control for health reasons about 2 years ago. Now it is time for something permanent. Two years ago the choice was obvious to us, a vasectomy for me. At the time, my procedure was simpler and cheaper. Now, we found out due to the ACA tubal legations are 'free' thru my insurance while vasectomies cost at least $60 per office visit, with a minimum of 3 visits. I am thinking it makes more sense to get her the free tubal legation [sic] instead of forking over $180 or more for a vasectomy. Are more men going to chose not to get vasectomies due to the higher costs involved than the alternative?" Even his fellow penny pinchers urged him to get the vasectomy.

That confusion doesn't surprise Dr. Donald Snyder, who describes himself as a "moderate Republican" with great qualms about the Affordable Care Act overall.

"If the law doesn't change, there will not be a reversal in the trend in the United States," said Snyder, who performs sterilization surgery on both sexes. "It would be a disservice to individuals and the society paying for the services, if the disparity between numbers of vasectomies and tubal sterilizations grows because of ACA, so vasectomy coverage should be mandated as well."

Snyder is a gynecologist at Rush Memorial Hospital Women's Care in rural Rushville, Ind., and performs vasectomies on Fridays through his entrepreneurial NoStork.com vasectomy practice. "It's not very logical to cover tubal sterilization but not cover vasectomy when in pregnancy there are two parents that result, not one. It doesn't show any intelligence to cover one side and not the other, especially when side is more expensive and less effective," he said.

Uninsured patients opt for vasectomy, in Dr. Snyder's experience. "When I tell patients who are paying for the surgery themselves that a vasectomy will cost up to $750 but a tubal ligation will cost up to $4,000 or $5,000, they almost never choose the tubal ligation," he said. "It will come down to the consumer. Right now the way the law is set up, there's no financial incentive for a woman to avoid a tubal ligation and have her husband have a vasectomy."

Employers would seemingly have an incentive to push for vasectomies over tubal ligation. "With the no scalpel technique I use, my surgeries average about ten minutes and use only local anesthesia," Goldstein said. "A patient can do it on Friday afternoon and be back to work on Monday."

The insurance industry has made no public move regarding the matter. America's Health Insurance Plans (AHIP), a trade group representing about 1,300 companies covering more than 200 million Americans, declined to opine on whether the ACA's surgical sterilization policy should be changed. Instead, a spokesperson provided AHIP's September 17, 2010 comments to the Department of Health and Human Services on preventive care under the ACA. That document includes a statement, "We look forward to providing input to [the Health Resources and Services Administration] (HRSA) on the development of the women's health recommendations...," but when MainStreet repeatedly asked over the course of a week whether AHIP had subsequently provided input, the public affairs department provided no response.

Still, Sonfield doesn't believe the problem arises from a deliberate legislative choice. "There's no one who is specifically trying to exclude preventive services for men," he said. "It was probably an oversight because with the bias in medical community for male adult patients, it wasn't as obvious to people that there might be some gaps there as well."

But at some point, HHS officials (whom the Department's spokespeople refused to identify) sewed the legal straightjacket that's vexing doctors and health policy advocates. A footnote by the HRSA, an HHS agency responsible for improving healthcare access, reads: "The HRSA Guidelines exclude services relating to a man's reproductive capacity, such as vasectomies and condoms."

With Congress deadlocked for the foreseeable future, a legislative fix to expand the language of the Mikulski amendment (to recognize that the vasectomy option benefits women's health) isn't in the offing. Perhaps another option is that HHS itself will tweak implementation of the law. Operating within the law's restrictive language, which specifies only evidence-based women's preventive care, HHS arrived at its policies after consultation with Institute of Medicine, part of the National Academies.

When asked about objections to the ACA's incentive for tubal ligations, Timothy Jost, Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law, said, "I absolutely don't disagree." But, for all its negative consequences in the lives of women, the HHS ruling is legally correct, he said.

The HHS ruling "seems to me a reasonable interpretation" of the ACA legislation, said Jost, who has written books about healthcare law and blogs at HealthAffairs.org. "As a matter of statutory interpretation, it's a very heavy lift to include vasectomies and male condoms as women's preventive care. It's a real stretch. Is it a good idea as a matter of policy? Sure, it's a very good idea to cover vasectomies and male condoms. We can certainly do things with men to improve the health of women, but most people would not consider those to be women's health preventive services."

Both Jost and Sonfield argued that a slight possibility for correction within the HHS might remain. Vasectomy and male condom coverage might be tucked into the ACA's more general prevention sections, rather than trying to translate the intuitive logic that these options benefit women's health into legalese.

And then, of course, there's always litigation. "Hey, the courts have shown themselves to be capable of rewriting the law all by themselves," Jost said.

--Written by Erik Baard for MainStreet