In 1971, the Supreme Court for the first time struck down a law under the Constitution’s equal-protection clause that treated men and women differently. Courts since then have invalidated countless laws that discriminated on the basis of sex. Bucking convention, advocates frequently attacked laws that were designed to benefit women under the theory that such laws perpetuated harmful sex stereotypes that “put women, not on a pedestal, but in a cage.” Americans now take for granted that the government acts illegally when it creates self-fulfilling legislation that presumes women are caregivers or do not work outside the home.
Nevertheless, as part of the Affordable Care Act, the government in 2011 promulgated a regulation with wide support that explicitly discriminates on the basis of sex: the contraceptive mandate. The mandate requires all health plans to provide cost-free birth control, but only for those methods used by women. Though it may sound counterintuitive, the mandate’s exclusion of men harms women—the very group the mandate was designed to benefit—and constitutes illegal sex discrimination. The only equitable remedy is to extend the mandate’s benefits to men.
The mandate’s exclusion of men harms women in several ways. Most practically, it fails to provide cost-free birth control to the large proportion of women who rely on male birth control to prevent conception: Fifteen to 22 percent of women rely on condoms, while 8 to 9 percent rely on their partner’s vasectomy. To put that number in context, more women rely on male contraception than rely on the birth-control pill. The mandate, which was passed to help all women access birth control, simply isn’t fulfilling its goal for these women. And because young women and women of color are more likely to rely on male contraceptives, the mandate’s exclusion of men disproportionately harms them. The reality is that all birth control—regardless of the user’s sex—helps women avoid unwanted pregnancy. Why should the law make a distinction that is irrelevant to women seeking the same goal of preventing pregnancy?
All birth control comes with risks and side effects; that’s one of the reasons so many women choose male birth control. And those who don’t often try multiple contraceptive methods in search of a safe, convenient, and circumstantially appropriate option. The government should not incentivize women to endure these risks over men. Compare tubal ligations (for women) with vasectomies (for men). Both are permanent, surgical contraceptive procedures. Tubal ligation, however, is more invasive and carries with it 20 times the risk of major complications and almost 30 times the risk of postoperative complications. Tubal ligation is also five to 30 times less effective. Nevertheless, tubal ligation is covered without cost-sharing under all health plans, while a quarter of insurers refuse to cover vasectomies; and those that do cover vasectomies typically require men to pay deductibles and co-pays. The mandate thus financially encourages women to endure the much riskier, less effective procedure when a safer, more effective option exists for men. This incentive is especially concerning given that tubal ligations are already three times as popular as vasectomies.
The same argument holds for nonpermanent contraception—the most common of which are condoms for men and various hormonal methods for women. Condoms, of course, are one of the safest birth-control methods on the market, while hormonal birth control can pose serious risks and side effects, including stroke, heart attack, and cancer. For most women, these risks are small. But for certain women, the risks are high enough that hormonal contraception may not be medically recommended; for example, for women over 35 who smoke or have certain health conditions, such as hypertension, breast cancer, or diabetes. Even healthy women can face side effects ranging from debilitating to annoying, such as mood disorders, migraines, libido loss, prolonged bleeding, and weight gain. Just as with surgical procedures, the government should not financially encourage women to endure these burdens when a safer, male option exists.
The mandate’s exclusive focus on women also creates incentives for industry—that is, for pharmaceutical companies to create new methods of female birth control, which health insurers must cover. While new female methods are certainly welcome and important, there is a greater need for new male methods. Rubber condoms have been on the market since the 1840s, and the last innovation in male birth control was the vasectomy, popularized after World War II. New male contraception would help men share contraceptive burdens with their partners, and innovation in this space is not a pipe dream. In fact, testosterone-based male contraception has been tested (with promise) since the 1970s. But for a variety of reasons, industry has been largely unwilling to invest in a hormonal male-birth-control product. An incentive may help cure industry’s disinterest.
Finally, like the unconstitutional laws of 50 years ago, the mandate’s exclusion of men perpetuates harmful sex stereotypes. The most obvious one is that birth control is a woman’s responsibility—that women should endure the risks and side effects of birth control and also shoulder the blame if accidents occur. The harmful effects of these stereotypes to women should be obvious by now, but men also suffer. Men are disempowered from shaping their reproductive destinies and exercising control over the number and spacing of their children. Moreover, these harmful sex stereotypes are false and not based on any biological rationale: Men and women are equally capable of preventing pregnancy by using contraception. A universal mandate would ease, not reinforce, the assumption that birth control is a woman’s problem, while still disproportionately helping women.
Unnecessary sex classifications in the law—even those created with the best intentions—almost always create assumptions about the “proper” responsibilities for men and women in society. Legislatures and regulators need to remember this hard-fought truth. The government can strive to cure gender inequality through the law without legislating sex stereotypes that harm both men and women.
The remedy here is simple: Make the mandate universal so that it applies to men as well as women. Legislative intent is the guide when courts consider how to remedy discriminatory laws, and the legislature that passed the Affordable Care Act would have favored extending the benefits. Of course, the current legislature or administration could extend these benefits itself without legal action through legislation or rule-making. Although the mandate was a huge step forward for women, true contraceptive equity requires a universal mandate, which would ensure that women keep their right to cost-free birth control without subjecting them to any of the harms created by the mandate’s sex classification.