by Kirsten “Shaw” Mettler
Volume 61, No. 1, 2026
Abstract
There is a pain gap: Doctors prescribe pain management for procedures that cisgender men undergo, but often not for those intended for female anatomy. Studies consistently show that intrauterine device (“IUD”) insertions cause intense pain, but doctors continue to refuse to prescribe pain management. The same is true for a litany of procedures: hysteroscopies, mammograms, egg retrievals. Women’s healthcare repeatedly fails to address pain. This comes as no surprise, given that gynecology developed from forced experimentation on Black women. The pain gap reinforces a culture of misogynistic subordination, worsens women’s health outcomes, and threatens broader public health. In short, the pain gap is a sex discrimination problem that causes real harm.
Section 1557 of the Affordable Care Act prohibits discrimination in medicine “because of sex” and should be used to combat this sex discrimination problem. Discrimination law is the most appropriate tool to combat this harm: Alternatives, like tort law, fail to appreciate the group-based harms at play and systematically discount women and people of color. Instead, litigants can argue the pain gap is sex discrimination under formal, anti-stereotyping, or
substantive equality theories. Of these theories, substantive equality is the strongest theoretical underpinning to argue sex discrimination because it is more likely to accurately and consistently identify the pain gap as discrimination, does not erase women’s unique experiences, and can better respond to religious challenges. The preference of American courts for formal or anti-stereotyping theories should not dissuade a substantive approach. Although Section 1557 is an underdeveloped area of law, it allows litigants to argue for a substantive equality analysis in cases involving the pain gap.