Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate

Abstract

Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s contraceptive mandate (Mandate), which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in four ways: it fails to financially support a quarter to a third of women that rely on male birth control to prevent pregnancy; it incentivizes women to endure the risks and side effects of birth control when safer options exist for men; it encourages unequal investment in new contraceptive options; and it perpetuates harmful sex stereotypes, like that women are responsible for birth control, that women are to blame for unwanted pregnancy, or that men are indifferent as to whether sex leads to pregnancy. The Mandate’s facial sex classification constitutes unconstitutional sex discrimination under the Equal Protection Clause and can only be equitably cured by extending the Mandate to cover male forms of birth control alongside female methods. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new methods of male birth control, benefiting men and women alike.

Keywords: Equal Protection, Reproductive Rights, Gender and the Law, Contraception, Affordable Care Act, Health Policy, Bioethics, 14th Amendment, Innovation Policy

JEL Classification: I13, I14, K19, K32, D63