Heated debate over President Obama's bill that mandates employer sponsored insurance plans to cover female contraception took a nasty turn last week. Despite talk of religious freedom and the proper role of the state in the private sector, one can't help but wonder how much of these political discussions is really a strawman for the larger dialogue around women's reproductive lives and control over their sexuality. This was only reinforced by radio commentator Rush Limbaugh's appalling and offensive comments about 30 year-old law student Sandra Fluke's testimony before the Democrat committee last week.
While most Republicans I know are quick to shrug off Limbaugh's comments as "made to shock" or "irrelevant," I disagree. They are entirely relevant to the views that persist around women and sexuality, and they need to be addressed in an intelligent manner. This means discussing why employer sponsored contraceptive coverage is important and why women are getting the short end of the reproductive health stick.
A Survey of the current law -- Why a federal mandate matters
As of 2012, 28 states have passed laws that require insurers that cover prescription drugs in general to provide coverage of the full range of FDA-approved contraceptive drugs and devices, up from zero in 1998. Various studies have found that state mandates play a crucial role in increasing the breadth and quality of coverage for women. For example, one study found that locally determined plans in the absence of a mandate were significantly less likely than those in states with mandates to cover the five leading methods of birth control. In addition, increase in choice among methods of contraception was also directly attributed to the increase in state mandates between 1993 and 2002. (Between 1993 and 2002, contraceptive coverage mandates were estimated to account for 30 percent of the increase in coverage for oral contraceptives and 40 percent of that for the three-month injectable.)
Despite this progress, 22 states still do not have mandates, putting a very large proportion of women of reproductive age at risk for poor or no coverage at all under their current plans. Of the states that do have mandates, only eight of them do not have religious exemptions, leaving a number of women at risk, especially under vague state laws. (For example, Maryland's law contains a broad exemption that simply permits religious employers to refuse to cover contraceptive coverage, without defining "religious employers"). Finally, state mandates require that private-sector insurers cover prescription contraceptives and related services only if they cover other prescription drugs or devices and other outpatient services. This leaves the door open for employer insurance plans to decline to cover contraceptives at all if they do not provide coverage for prescriptions in general. Furthermore, because state mandates do not apply to self-insured plans, they likely affect only about one-quarter of women covered by employer-sponsored plans. (That means that this number does not include the proportion of women in the 50.7 million Americans who are uninsured!). Moreover, even if state mandates require coverage of a service, drug or device, insurers may restrict access in several ways, such as through high out-of pocket expenses for enrollees.
Why Gender Parity Doesn't Work
A repeating theme in the ongoing debate on pregnancy, contraception and other issues pertaining to women's reproductive health is the constant struggle to find ways to apply various legal doctrines in a manner that treats men and women exactly the same. The problem: we are not the same.
Nearly all courts that have addressed the claim that denial of contraceptive coverage is discriminatory have focused on a theory of "parity of benefits," which requires that women are given nothing "extra" in health insurance coverage. In other words, it is acceptable to deny women coverage of contraception if men are denied the same (i.e., contraception, namely condoms and vasectomies). The problem with the parity of benefits theory is that it ignores the fact that women are not biologically equivalent to men. Only women can become pregnant, thus the denial of access to contraceptives to men or women impacts women uniquely.
In fact, the very characteristics that define womanhood, that is, pregnancy or female sexuality, serve as indicators that immediately trigger suspicion and scrutiny. Alternatively, we need to think about gender parity as not equal expenditure by an employer on male and female employees, but equal treatment as to the physiological needs of each sex. (Great example from one court ruling justifying non-coverage: "Union Pacific's heath plans do not cover any contraception used by women such as birth control, sponges, diaphragms, intrauterine devices or tubal ligations or any contraceptive used by men such as condoms and vasectomies. Therefore, the coverage provided to women in not less favorable than that provided to men.")
I prefer to contrast this view to another court that explained, "male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception... the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII."
The "Religious Freedom" Argument
Yes, that's in quotes. And here's why. First of all, the jig's up for the Church -- a recent study found that some 98 percent of sexually active Catholic women in the United States have used contraceptive methods banned by the church. The latest data shows practices of Catholic women are in line with women of other religious affiliations and adult American women in general.
Second, in response to problematic and vague interpretations of "religious employers," the Obama administration policy exempts places of worship. For other employers, the administration offers an accommodation caveat -- religiously affiliated organizations such as Catholic charities, schools, universities or hospitals can still refuse to provide contraceptive coverage through their insurance plans for employees. In such cases, employers' insurance companies must offer coverage to female employees directly, without charging additional premiums. By offering this compromise, religious employers are not forced to compromise their values, and women receive the protection they deserve under Title VII.
So, what is this really about?
Who's Getting Paid to Have Sex, Anyway?
In a 1998 article published by the American Bar Association Journal, Richard Coorsh, spokesman for the Health Insurance Association of America in Washington, D.C., asserted that a clear distinction exists between Viagra, a cure for a medical dysfunction, and contraception, which he called a "lifestyle drug" by arguing that birth control is "merely preventive and is not medically necessary." According to the Washington Post, little more than one month after its introduction, 47 percent of the nearly 270,000 Viagra prescriptions sold across the U.S. were subsidized by some form of health insurance. A 1997 study revealed that at the same time, 45 percent of employers' most popular health plans covered contraception drugs and 35 percent covered contraception devices, both of which had been on the market since the 1960s.
The idea that Viagra is a medical necessity for men, while contraceptives are not for women, has been a blatant form of sex discrimination in our society for over a decade. The message is clear: that female sexuality is only legitimate to the extent that it fulfills our designated role in society as child-bearing vehicles, and that women's ability to control their participation in society is not important. As Janet Benshoof argues in her piece in the Chicago Tribune, "there are strong stereotypes about women that are behind this discrimination. Men are meant to have erections and sexual pleasure. Hence, fund Viagra. Women are designed to get pregnant, become mothers, and not be sexual. Hence don't fund 'unnatural' contraception or abortion."
Courts that have rejected employer coverage of contraceptive access have embraced the theory of "equal coverage," implying an economic explanation; that women should not receive special privileges because their bodies cost more to maintain than their male counterparts. However, the empirical evidence suggests otherwise. Providing contraceptive coverage to female employees equates to about $21.40 per company employee per year, or on average an additional cost of $4.28 for each employee per year. Ultimately, the added expense to employers who provide employees with medical insurance would be about an additional 0.6 percent. (Note: This additional cost takes into account the fact that many employers already provide coverage for birth control under current plans).
Although this figure may appear expensive to some, when compared with the estimated $10,000.00 expense per normal childbirth, the cost of female contraception is relatively low. In fact, a 1995 study published in the American Journal of Public Health that used cost data from managed care plans provided by large employers in 45 major metropolitan areas to compare the costs and benefits of contraceptive use found that all 15 of the contraceptive methods reviewed were cost-effective when compared with the direct medical costs of unintended pregnancy that resulted when methods were not used. The savings ranged from $9,000 to $14,000 per method over a five-year period; using oral contraceptives saved almost $13,000 over a five-year period.
The statistics beg the question: why are women's reproductive rights disregarded? The struggle that women have faced since the Supreme Court decided Roe v. Wade in 1973 to maintain autonomy over their reproductive and sexual health is indicative of a continuous societal effort to exert control over female sexuality. Apart from confronting traditional social stereotypes of being child-bearing, non-sexual beings, women have unwillingly been pitted against a legal paradigm that has historically offered a very thin façade of protection (Thank you, President Obama for endeavoring to change this). By analyzing such important decisions as women's reproductive rights in a biological vacuum, courts and state legislatures have been able to restrict such very personal and intimate decisions without addressing the social implications of their decisions.
While women's access to contraception has unarguably come a very long way in the last decade, the past weeks have demonstrated that the struggle is far from over. It is time that we as a society reframe the dialogue around women's reproductive rights, as it is the lynchpin of the private and governmental actors' attempt to control many aspects of female sexuality.