The Sex-Friendly Case Against Free Birth Control

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.

In this instance, the federal bureaucrats deliberated and the progressive arguments prevailed. "The fact that it is women, rather than men, who have the ability to become pregnant cannot be used to penalize them in any way, including in the terms and conditions of their employment," the agency stated in its decision. "Contraception is a means by which a woman controls her ability to become pregnant. The PDA's prohibition on discrimination against women based on their ability to become pregnant thus necessarily includes a prohibition on discrimination related to a woman's use of contraceptives. Under the PDA, for example, Respondents could not discharge an employee from her job because she uses contraceptives. So, too, Respondents may not discriminate in their health insurance plan by denying benefits for prescription contraceptives when they provide benefits for comparable drugs and devices." Whether contraceptives are "comparable" to other drugs and devices was, of course, core to the controversy. The agency concluded, plausibly, that contraceptives are comparable to other preventative health care measures and prescription drugs. After the decision, an employer could stop offering its workers health insurance that covered preventative care and prescriptions, but with few exceptions it couldn't offer those benefits and exclude birth control coverage.

Enter President Obama, whose progressive vision -- shared by the aforementioned New York Times editorial -- is a population of women who are 100 percent insured, and entitled (via their health insurance) to their choice of birth control without a co-pay or increased premiums. A relatively small number of Americans object to that vision because they're averse to birth control generally. Although their dissent is most frequently talked about, there are other Americans, like me, who favor universal access to birth control but object to a universal subsidy.

Covering birth control for the poor may reduce costs overall insofar as it prevents unintended pregnancies that would ultimately cost more to cover. But the higher up the income scale you go, the less this logic applies. As noted in the 1995 study the Obama Administration has cited for its contested claim that its broader mandate is cost-neutral, "If, by expanding coverage, a payer simply finances the contraceptives that would otherwise have been purchased by individuals, then the payer's net costs are likely to increase." Among the middle and upper classes, providing 'free' birth control is inevitably going to subsidize it among a lot of people who'd be paying for it themselves if it wasn't covered. And it's also going to permit them to consume more expensive forms of birth control without bearing any added cost, even as pharmaceutical companies are incentivized to raise prices on even the cheapest products they offer, and to develop more expensive forms of birth control to exploit the lack of price-sensitivity. The Obama mandate may be cost neutral compared to some hypothetical alternative, but it is more expensive than the alternative that I am proposing - subsidizing birth control for poor women, and everyone else paying their own way - and also more expensive than a system that subsidized only the cheapest form of birth control pill. It also creates incentives for the cost of birth control to rise in the future.

The Case Against Subsidized Birth Control For All

A short history of health care in the United States might go something like this: once upon a time, people could pay a doctor, rely on charity, or go without medical treatment. Then some employers began offering health insurance as part of the compensation package negotiated with workers. The government encouraged that system through tax incentives, and later by requiring an increasing number of employers to offer health insurance. More recently, government has increasingly dictated even the coverage details of the policies that are negotiated.

We're now in the last stages of a transition to a health care system where what's covered by health insurance isn't a matter of what policy an individual chooses to buy, or the deal he or she strikes at work, or even what health care costs are most suited to being covered through risk pools. Nowadays, what's included in health "insurance" is a matter of what our polity, through its elected representatives, bureaucrats accountable to them, and judges who aren't, decide that we ought to provide to all citizens. We've moved from coverage dictated by what markets will bear to coverage dictated by the sorts of inevitably redistributionist policies that a legislative majority regards as just. It's gotten increasingly contentious because our values are increasingly implicated, something progressives sometimes try to elide by saying that something is "just part of health care," a phrase that now effectively means "part of a system in which everyone is forced to participate, and that makes contestable judgments about what ought to be included." We've blurred what is an insurance benefit and what is a subsidy or entitlement, for participating in a risk pool with our fellow citizens will no longer be a voluntary decision, thanks to Obama's reforms.

There are going to be redistributive consequences, or the equivalent of subsidies, no matter what health care system we choose. Resources are just going to flow from healthy people to diseased people. And it is widely thought that resources are spent unequally, but justly, when one man lives a healthy life and dies at age 60 in his sleep while another, who pays the same insurance premiums or taxes, contracts multiple sclerosis at age 45, requires two decades of costly care, and dies at 65. Another category of things many people think that health insurance should cover might be called "the malfunctioning body." If you're born needing surgery to see, if you break your leg, if you need fertility treatments to get pregnant, or if you can't get an erection without a pill, the notion is that folks whose functions are intact justly wind up subsidizing the costs of caring for the afflicted.

Including birth control (as distinct from contraceptives used for other purposes) in universally mandated health-care coverage has its own unique redistributive effect, one that seems more problematic in a pluralistic society than funneling resources from the healthy to the sick or malfunctioning. Mandating participation in an insurance risk pool that covers birth control redistributes resources based partly on lifestyle choices, values, and conceptions of what is fulfilling. For example, gays and lesbians have no use for birth control, but are being made to participate in risk pools that cover it, effectively leaving them with fewer resources as a result of their status as a cultural minority group, rather than a part of the majority that desires birth control.

The effect on gays and lesbians hints at the larger nature of this subsidy. If we broadly agree that we value "treating disease" and "fixing the broken body," in what category do we put taking birth control? It's a highly contested matter, confounding in that there is no consensus. As ever, progressives want to put it in the category of "preventative care." But it is at least different than less controversial sorts of preventative care: 1) A small number of Americans have a moral objection to it. 2) The condition being prevented, pregnancy, isn't identical to a disease. 3) The condition being prevented, pregnancy, can be avoided through an alternative approach, abstinence, that is completely effective and free -- or a very cheap method, condoms, that have various advantageous and disadvantages that the thoughtful reader can supply him or herself.

These differences alone don't mean that birth control ought not be covered as part of America's universal package of health-care benefits. But they did cause me to struggle towards a more nuanced category in which to put birth control. Its purpose is not only to prevent an undesired condition, for which it isn't strictly necessary, but to do so while preserving an individual's ability to partake in an activity most people regard to be pleasurable and/or meaningful: heterosexual intercourse. I can think of no satisfactory, real world analog to compare it to.

But hypotheticals can assist us. Don't be put off by their implausibility, for they help to clarify what's at stake. Imagine that scientists developed all three of the following innovative pharmaceuticals:

1) A pill that permitted heterosexual men -- but, for some reason, only heterosexual men -- to drink alcohol without damaging the body in the normal ways.

2) A pill that permitted women -- but for some reason, only straight women -- to experience during yoga physical pleasure and stress relief equivalent to orgasm during intercourse.

3) A pill that permitted anyone to safely experience all the salutary effects of a good LSD trip without any risk of addiction or ill health effects.

Like birth control, these hypothetical pills must be taken throughout the course of the month to be effective, and cost roughly the same amount. Should any or all of them be offered free to anyone who wants them via the American health-care system, and therefore effectively subsidized by all the people in the same risk pool who either don't want to take them or won't benefit? I would say that they should not be included, although I'd celebrate the invention of all three pills.

My reasons for opposing their inclusion -- for refusing to ask that everyone in the American risk pool underwrite their cost for the sake of those who would benefit -- would be similar to the reasons that I oppose universal "free" birth control. That some people, or even a majority, would find healthy alcohol or orgasmic yoga or consequence-free LSD intensely pleasurable or deeply meaningful is great, but isn't itself grounds for defraying the cost of their supply by spreading it to people who feel differently. So it goes for sexual intercourse between straight people. The more you thinks about it, the more apparent it becomes that pooling the costs of contraception produces lots of winners and losers, and that contrary to the progressive rhetoric, it isn't women as a class who benefit. A less obvious cultural majority, one that includes many women, benefits. A cultural minority -- including more than just gays and lesbians -- are the losers.

Once birth control for the poor is covered, I wonder why so many on the left either don't recognize or don't object to the redistributive consequences of pooling contraceptive costs among everyone else, even people who could afford them on their own. Compared to a system that just took care of the poor (or even to a system that included only the cheapest kind of birth control), here is a more detailed but by no means complete look at the winners and losers:

- Those who are sexually active, especially over long periods, benefit at the expense of those who aren't, whether by choice or for lack of opportunity. This sure seems non-materially regressive.
- A wealthy man who holds assets in common with his wife benefits as the cost of their household birth control prescription is reduced, even as an unmarried, working class woman who wants to wait until marriage to have sex belongs to the risk pool that is defraying their costs.

- The fertile, who benefit at the expense of the infertile.

- Folks in their child-bearing years, who benefit at the expense of younger and older people.

- Those engaged in recreational sex, or who are trying to avoid pregnancy, who benefit at the expense of those trying to have kids.

- Folks who use expensive forms of contraceptive, who benefit at the expense of folks who rely on condoms or natural family planning.

- Straight people, who benefit at the expense of gays and lesbians, who have no use for birth control.

When it comes to marriage or gender-neutral bathrooms or transsexual rights, progressives are careful to insist that cultural majorities shouldn't impose their heteronormative standards on society, but when it comes to the birth control debate, they've been quick to exploit the ways in which their preferences are shared by a cultural majority. They understand that frequently engaging in non-procreative, heterosexual sex while using prescription birth control is widespread.

As they see it, the existence of that cultural norm is an argument in favor of a subsidy for the cultural majority. Never mind that there are Americans who don't value non-procreative sex, or who don't value it as highly as some other fulfilling pursuit, whether surfing or Gregorian chants or yoga or hunting. As Amanda Marcotte argued, the straight, secular relationship to sex is "normal." But why should the sexually "abnormal" (minority groups like gays and lesbians, asexuals, people who never manage to attract very many sexual partners, people who just care about sex relatively less than the average person, or care about other goods much more) have less with which to pursue what they value due to public policy that disadvantages their preferences?

Surely we can conceive of a woman assessing a year's income, whether at age 18 or 24 or 35 or 44, and deciding that among her $27,000 or $35,000 or $64,000 or $102,000, the fraction that she could spend on birth control in the coming year would be better applied to a Hawaiian vacation, or a charitable donation, or a new dog, or a retirement investment, or a meditation class, or higher status as a Scientologist. Once you decide that society is going to mandate that something is universally available, even those who partake in the benefit lose the ability to opt out and spend their own share of resources in a way that suits them better, if only temporarily.

They can forgo the benefit, but will still need to pay the cost.

Reflecting on the legislation, court cases, and administrative decisions so far discussed -- in sum, the history that has brought us to the current regime of birth control subsidies -- there are many advances in women's equality to celebrate. There are also bits of reasoning that I find unpersuasive. Rather than argue with settled law, I want to reflect on its real world consequences. It has expanded access to birth control. Insofar as benefits have flowed to poor women who couldn't otherwise afford female contraception, that is a good public policy outcome.

But this series of legislative, judicial, and bureaucratic decisions, many of them defensible or even desirable on narrow grounds, add up to a health-care system that is unjust, for it needlessly privileges cultural majorities at the expense of cultural minorities, and obscures redistributive consequences that are sometimes regressive, especially compared to the alternative I suggest: subsidizing contraception only for the poor who can't afford it. Individuals ought to decide what they find fun or meaningful enough to spend their money on. As progressives argue with social conservatives, whose positions on sex and contraception I too find wrongheaded, the progressives are unwittingly saying that subsidized birth control is desirable even when it involves forcing into the same insurance risk pools people who want little or no contraception with people who want a lot of it. Some claim that's the only way our health-care system can avoid discriminating against women. Never mind that the resulting system arguably leaves some women, all gays and lesbians, and various other cultural minorities worse off than they'd be under the alternative system we should consider, where the middle and upper classes cover the cost of their contraception themselves.

Image credit: Reuters