The Sex-Friendly Case Against Free Birth Control

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Its free provision privileges the pleasure-seeking of a cultural majority -- but does nothing for cultural minorities, including gays and lesbians.

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Social conservatives and progressive feminists are convenient foils for one another. Is anything more unnerving to the average Rick Santorum supporter than the prospect of young women with free birth control, a capacity for guiltless indulgence in premarital sex, easy access to abortion, and a growing tendency to unashamedly bear children out of wedlock? For their part, do progressive feminists find any well-known politician as alarming as Santorum, who asserts that all non-procreative sex is problematic, that states are empowered to ban birth control, that abortion should be banned even in the case of rape, and that America should subsidize traditional families?

The disproportionate attention these polar visions attract can obscure the fact that neither are entirely shared by most Americans, who reject both Pope John Paul II's Theology of the Body and the cultural agenda of the sex positive, non-traditionalist left. Among the many positions missing from the contraception debate in particular is my own: an enthusiastic embrace of easy access to birth control pills and intrauterine devices, coupled with a rejection of what a NY Times editorial described as "an essential principle -- free access to birth control for any woman."

Hurray that most humans enjoy non-procreative sex. I favor permitting pharmacies to sell contraceptives without a prescription, health-insurance plans that cover the use of contraceptives for medical reasons, and subsidizing birth control for poor women who cannot afford it. But I dispute that a universal subsidy for contraception is "a victory for women," a necessity if women are to be free from sex discrimination, or a just mandate. There's a powerful liberal case against subsidizing birth control for every female. It is grounded in the importance of pluralism. Progressives, who focus on arguments made by social and religious conservatives, haven't confronted alternative critiques of their position. Before articulating such a critique, I want to run through the arguments they make for a universal birth control subsidy and the political history that led here. Enormous credit is owed them for expanding women's rights in the process. 

The Long Fight Over What Constitutes Equality in Health Care

President Obama's attempt to expand access to subsidized contraceptives through employer provided health insurance is best understood as a small victory for progressives in a fight they've been waging for decades. Its origins are instructive, and though it's difficult to say just when the story begins, one significant moment occurred when the Civil Rights Act of 1964 was signed into law. Title VII of that legislation stated that employers covered by its provisions could not "refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." It's made our nation a better place.

Several years later, in 1971, several female employees of General Electric got pregnant and applied for benefits under a program that the company had recently established for all its workers. It dictated that a worker would receive 60 percent of his or her normal paycheck if he or she became disabled as a result of nonoccupational sickness or accident. When GE reaffirmed its position -- that getting pregnant didn't count as a disability for the purposes of its program -- the women sued. The case would eventually make it all the way to the Supreme Court.

The justices disagreed on the merits of the lawsuit. Some thought that pregnancy was unlike a sickness or disability -- that it plausibly belonged in a different category. These justices pointed out that "there is no proof that the package is in fact worth more to men than to women." After all, they reasoned, men and women employed by GE received equal benefits for all the risks to which both groups are subject: if an employee broke a leg skiing, got injured in an automobile accident, or suffered from cancer of the breasts or prostate, they'd be treated equally regardless of their sex. "For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks," these justices argued. And if pregnancy were covered by the program, GE defenders observed at the time, wouldn't it guarantee that the company spent much more money on claims made by women than men? Equality turned out to be tricky.

The Supreme Court justices who took the women's side were as determined in their arguments. "The rule at issue places the risk of absence caused by pregnancy in a class by itself," one wrote. "By definition, such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male." Said another justice: "General Electric's disability program has three divisible sets of effects. First, the plan covers all disabilities that mutually afflict both sexes. Second, the plan insures against all disabilities that are male-specific or have a predominant impact on males. Finally, all female-specific and female-impacted disabilities are covered, except for the most prevalent, pregnancy."

The majority sided with GE.

As far as the Supreme Court was concerned, employers weren't obligated to treat pregnancy the same as what proponents of their decision might call "sicknesses and disabilities," and what detractors might call "other medical conditions with similar effects." The decision was handed down in 1976, as Jimmy Carter campaigned for president. And it provoked a big backlash.

In 1978, President Carter signed into law The Pregnancy Discrimination Act, a congressional response to the recent Supreme Court decision. It amended Title VII of The Civil Rights Act, stating that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." The GE plaintiffs wouldn't benefit but women in situations similar to theirs would fare better.

The progressive agenda on women's rights and benefits stalled for more than a decade, as Presidents Reagan and Bush occupied the White House for 12 consecutive years. When President Clinton was elected in 1992, progressive activists sought numerous reforms that would increase women's equality as they saw it. Their major accomplishment was The Family and Medical Leave Act of 1993, which required most employers to provide job-protected leave to employees if they suffered from a personal or family illness, had a child, adopted, or served in the military.

A less remarked upon change came in 2000.

The Equal Employment Opportunity Commission, the federal agency that interprets and enforces Title VII, received a complaint that year from a registered nurse whose employer provided health insurance didn't cover contraception. It did cover numerous prescription drugs, preventative care including pap smears and mammograms, and vasectomies and tubal ligation surgeries.

Progressive activists argued that health insurance plans of that kind were discriminatory. What justification could there be, they demanded, for a policy that covers the erectile dysfunction drug Viagra for men, but doesn't cover birth control for women? Didn't that prove that the health-care system privileged male sexuality? Defenders of the discrepancy saw it differently. In their telling, a prescription for birth control was different from a prescription for Viagra. A fertile body was healthy and working as intended, whereas an impotent man's body was malfunctioning, they argued. And birth control was different from other types of preventative care in their view, for a vaccination or a mammogram guards against contracting a virus or metastasizing cancer, whereas birth control guards against becoming pregnant, something that usually doesn't occur absent the voluntary decision to have sex, and isn't equivalent to a disease. Finally, Viagra was arguably better suited to an insurance market, for a lot of men could enter into a risk pool for years, with only some of them developing the need for Viagra, whereas most women could predict at an early age whether or not they'd want a birth control prescription. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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