Ruth Bader Ginsburg dissent says women pay 68 percent more out of pocket for health care

The Supreme Court recently decided Burwell vs. Hobby Lobby -- a landmark decision in which a 5-4 majority ruled that a closely held, private corporation could decline, on religious grounds, to pay for certain kinds of contraceptives otherwise mandated in employee health coverage by the Affordable Care Act.

The decision was a victory for supporters of religious freedom and a defeat for backers of expanded reproductive health care. The unveiling of the decision on June 30, 2014, produced widespread commentary and debate over its merits.

Associate Justice Ruth Bader Ginsburg’s stinging dissent attracted wide attention from those who opposed the majority opinion. We noticed the following claim in Ginsburg’s dissent: "Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men."

We thought it would be interesting to see how that statistic was calculated. But when we looked into it, we were in for a surprise: The 68 percent figure was a lot older than we’d expected.

Where the statistic came from

In her dissent, Ginsburg cited the statistic as being from a "statement of Sen. Feinstein," which appears to refer to a Senate floor speech by Sen. Dianne Feinstein, D-Calif.

During the debate on President Barack Obama’s Affordable Care Act in December 2009, Feinstein said, "The fact is, women have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men. Most people don't know that, but it is actually true."

The 68 percent statistic has been cited repeatedly in the judicial debate over the contraceptive mandate in the health care law.

In the Hobby Lobby case alone, it was cited in briefs by the Obama administration, as well as in an amicus, or friend-of-the-court, brief by 91 Democratic members of Congress and a separate amicus brief by the National Women’s Law Center. We found a flurry of references to the statistic in court cases, bills, and reports in 2014, 2013, 2012, 2009, 2003, 2002, 1999 and 1998.

After a lot of digging, PolitiFact was able to trace the 68 percent figure back to a publication released by the Women’s Research & Education Institute titled, "Women's Health Care Costs and Experiences." That study was published in 1994 -- and if 1994 was the publication year, it’s reasonable to assume that the data in question are even older than that. (We couldn’t find the full report online, and inquiries to the group and to the original author were not answered.)

Is there newer data?

Could Ginsburg -- or anyone else who cited the 68 percent statistic in recent years -- have used more up-to-date data? Yes.

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PolitiFact asked officials at the Agency for Healthcare Research and Quality -- a part of the U.S. Department of Health and Human Services -- to walk us through the data in the Medical Expenditures Panel Survey, which is the source several independent experts had suggested we use to test Ginsburg’s statistic.

It turns out that for 2011, women between 18 and 44 had out-of-pocket expenses that averaged 69 percent higher than men of the same age range. That’s virtually indistinguishable from what Ginsburg said.

Still, it’s worth noting that alternative data comes up with somewhat lower estimates.

Data from a different HHS source -- National Health Expenditure Accounts -- found that in 2010, women between 19 and 44 had 52 percent greater out-of-pocket spending than men of the same age range.

And an annual study by the Health Care Cost Institute, which is based on information supplied by private health insurance companies, found an even smaller gender gap. In 2012, women's out-of-pocket expenses were 36 percent higher than men's. However, this figure is for all women through age 65, rather than just childbearing age, so it’s not an apples-to-apples comparison.

The experts we checked with didn’t doubt that women of childbearing age tend to pay more out of their pocket for health care. "Women under 65 use a lot more health services than do men, especially preventive care, screenings and well-care, all of which is covered less by insurance than hospital expenditures," said Gail Wilensky, who headed Medicare and Medicaid under President George H.W. Bush.

Still, there are indications that the gap is narrowing between men and women, perhaps because the insurance market has changed substantially over the past 20-plus years, with cost-sharing becoming much more significant than it was in 1994. The annual Kaiser Family Foundation/Health Research & Educational Trust study found a rising percentage of workers with employer-provided health coverage facing an annual deductible of $1,000 or more. The share of people in that category rose from 10 percent in 2006 to 38 percent in 2013 -- a far shorter time horizon than 20 years.

Meanwhile, data from HHS’ national accounts series shows that out-of-pocket spending for men grew faster than it did for women between 2002 and 2010 -- a 3.9 percent growth rate for men, compared with 3.3 percent for women, Tanner said.

The significance of an old statistic

We can’t be 100 percent sure that by citing Feinstein, Ginsburg was simply relying on a very old statistic without further checking. However, given the long history of the identical number being used, we suspect the statistic was repeated, in most or all cases, without being checked against more recent data. Ginsburg did not respond to an inquiry for this story sent through the Supreme Court’s public information office; justices rarely if ever comment to the media.

In any case, we found repeated mentions of this statistic by advocates, lawmakers and government officials without citing the original 1994 source, leaving the incorrect impression that the number was current.

Our ruling

Ginsburg wrote that "women of childbearing age spend 68 percent more in out-of-pocket health care costs than men."

Some estimates cited by a litany of politicians and advocates are based on 20-year-old data. But more recent data shows that women do still pay more out of pocket for health care than men do, with one estimate very close -- 69 percent -- and other estimates in the 40 percent to 50 percent range. On balance, we rate the claim Mostly True.