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?