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

66 Pages Posted: 8 Apr 2019 Last revised: 25 Aug 2019

See all articles by Greer Donley

Greer Donley

University of Pittsburgh - School of Law

Date Written: April 4, 2019

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, 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 three ways: it incentivizes them to endure the risks and side-effects of birth control when safer options exist for men; it perpetuates harmful sex stereotypes, like that women are to blame for unwanted pregnancy or that men are indifferent as to whether sex leads to pregnancy; and it fails to financially support the quarter to a third of women that rely on male birth control to prevent conception. 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. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new, pharmaceutical 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

Suggested Citation

Donley, Greer, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate (April 4, 2019). Alabama Law Review, Vol. 71, no. 2, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2019-05. Available at SSRN: https://ssrn.com/abstract=3366548

Greer Donley (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412.648.1359 (Phone)
412.648.2649 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/greer-donley

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