Codifying Indifference and Exclusion : Congress would protect manufacturers’ interests to the detriment of women’s health.

This week, the U.S. Senate will consider legislation that would take a heavy toll on the health of women in this country.

By virtue of our need for contraception, care during pregnancy and other results of our reproductive character, women have been the victims of many of the worst drug and medical-device disasters. Our general health concerns have long been ignored. If enacted, this legislation would codify this indifference and exclusion.

For years, the manufacturers of known and suspected dangerous substances, drugs and medical devices have pursued legislative means to limit the ability of injured parties to recover damages. The Product Liability Fairness Act is their latest attempt--and it is dangerously close to succeeding. If it passes, state laws that protect victims would be preempted by new, restrictive federal statutes that protect the financial interests of manufacturers, even when they have engaged in unconscionable behavior.

The losers fall disproportionately into two categories: low-wage earners and victims of dangerous drugs and medical devices like DES, the Copper-7 and Dalkon Shield IUDs, silicone breast implants, high-estrogen contraceptives and super-absorbent tampons. In other words, women.

As one can imagine, multinational corporations are aggressive backers of the bill--among them General Motors, Exxon, DuPont, Dow Corning (maker of the silicone breast implant) and Eli Lilly (maker of DES). Every major consumer organization as well as women’s organizations, senior citizens’ groups and labor unions are against this legislation.

Nonetheless, fighting multimillion-dollar corporate strategies isn’t easy. Because of their efforts, some people and certainly some senators mistakenly believe that rationing justice to plaintiffs is the right thing to do. They must be told that the vast majority of victims of defective products never file suit; that business insurance premiums and payouts are a tiny fraction of 1% of business revenues, and that winning a products case is not only difficult but also costly for the plaintiff.

The deception created by proponents of this legislation is obvious when one sees the faces and hears the stories of the millions of women who have lost the ability to bear children because a manufacturer, even knowing the risks, chose to keep a dangerous product on the market. There are the thousands given DES during pregnancy, sometimes without their knowledge or consent, and whose children bear the tragic consequences. There are the thousands who lost their reproductive capacity from uterine infections and perforated uteruses, and some who died, because they used the Dalkon Shield IUD.

This bill particularly harms women because it would sometimes limit an injured person’s ability to be fully compensated for the pain and suffering caused by a defective productive. Such damages compensate for intangible losses, such as fertility, disfigurement or the loss of a fetus. Because of the “glass ceiling” in the executive suite, the “sticky floor” of the pink-collar ghetto and other societal factors, women in general earn less than men. Therefore, compensation for injury other than lost wages is often a larger component of a woman’s claims. In addition, many products designed for women have led to spontaneous abortions, miscarriages and permanent sterility--injuries with a low dollar value in economic terms, but a high value to women. By assigning a lower value to such injuries, the bill relegates women to a second-class status.

Manufacturers of dangerous drugs and medical devices would be shielded from punishment as long as the product received approval from the federal government. This provision in the bill would have protected the makers of diethylstilbestrol, or DES, which was marketed as an anti-miscarriage drug after approval from the FDA, despite evidence at the time that the drug caused cancer and malformed reproductive organs in animals. What is worse, DES was also known to have absolutely no therapeutic value in preventing miscarriage. Yet it was sold for more than 20 years, ultimately affecting 10 million women and children.

In sum, the Product Liability Fairness Act would seriously endanger women’s health by removing incentives for manufacturers to recall unsafe products and by undermining the ability of women to receive full recoveries for injuries. Surely there is a better way to address the concerns of businesses--especially those so intimately involved in women’s health.