Gender Discrimination

A second area where the 2011 HHS mandate is problematic in terms of public policy concerns claims of gender discrimination. As we saw in the previous section, mandate supporters have argued that excluding contraceptives from prescription drug plans constitutes a violation of both Title VII and the Pregnancy Discrimination Act (PDA). However, a closer inspection of these arguments raises a fair level of doubt. The truth is that neither Title VII nor the PDA specifically addressed the issue of contraception, let alone mandated its coverage. Both acts were designed specifically to protect the rights of women who were pregnant, not to offer new benefits to those who were seeking to prevent pregnancy. Mandate supporters have used broad interpretations of court decisions regarding Title VI and the PDA in making their arguments. But, as we have seen, various cases that supporters cite do not specifically address the issue of contraceptive coverage, [23] and the courts have rendered seemingly contradictory interpretations on the issue. In addition, it is hard to claim gender discrimination when an employer already excludes contraceptive coverage for men; a finding cited by the 8th Circuit Court of Appeals in the In re Union Pacific Railroad case (see “How Did We Get Here?”). The health care plans of Catholic employers routinely exclude sterilization (vasectomy) and certainly do not pay for condoms, realities that undermine the argument that excluding oral contraceptives (et. al.) constitutes gender discrimination. In fact, medical research is actively seeking a prescription contraceptive for males and it is only a matter of time before such medication becomes available. When this happens, the gender bias argument will no longer hold weight and, under Title VII and the PDA, employers will presumably be free to exclude prescription contraceptive coverage for all employees.

While the overall debate concerning gender discrimination will continue well into the foreseeable future, it is important to address three specific gender-related challenges raised by mandate supporters. First, supporters claim that excluding contraceptives from prescription drug programs is discriminatory because women, particularly single women, are disproportionately affected by unintended pregnancy.[24] Mandate opponents counter by claiming that while it is true that exclusion would force women (or couples) to obtain contraceptives on their own, at present there is no demonstrated link, significant or otherwise, between the exclusion of prescription contraceptives and unintended pregnancy. In other words, if one wanted to argue that employer exclusion of contraception leads to increased numbers of unplanned pregnancy, one would have to demonstrate a statistical link between the two. To date no such link had been demonstrated,[25] a point conceded by mandate supporters,[26] and in fact the exact opposite may be true.

In its June 2010 Vital and Health Statistics, the Centers for Disease Control (CDC) reported that most of the pregnancies that occur among contraceptive users are caused by “inconsistent or incorrect use, not by a failure of the method itself.”[27] In other words, a majority of unintended pregnancies that occur with women taking contraceptives result from the fact that she (and/or her partner) (a) do not know how to use them correctly, (b) choose not to use them correctly, or (c) unwillingly use them incorrectly. Thus, the 3%-5% failure rate associated with oral contraceptives is due in large measure to “failures in compliance.”[28] Statistics from the Guttmacher Institute demonstrate the same. In August 2011 the organization reported that 54% of women who had had an abortion had used contraceptives in the month that they became pregnant. Of these women, 76% who had used birth control pills stated that they had used these methods “inconsistently.”[29] Now assuming that all this research is accurate, the often heard argument that increased access to contraception will lead to a reduction in the numbers of unplanned pregnancy is simply not true. If incorrect, non-compliant, or inconsistent use is the leading cause of unintended pregnancy among contraceptive users, it stands to reason that the HHS mandate will actually increase the overall number of unplanned pregnancies, not decrease it.[30]

The second gender-specific argument deals with cost. Mandate supporters argue that when employers exclude contraception from prescription drug panels, female employees are not able to obtain them due to cost or other factor. This assertion is, in fact, at the heart of the claim that mandated contraceptive coverage promotes public health.  However, in order to justify this argument, supporters would have to demonstrate that there is a statistically significant number of employed women who want to use prescription contraceptives but who cannot because they are not covered in their health care plans, but would be able to afford a co-payment if such coverage were provided. Once again, to date there is no direct evidence that such a link exists.[31]

Closely related, supporters also maintain that the mandate will save money. The argument here is that because contraception decreases the rate of unintended pregnancy, mandated coverage will save both individual women (who, it is claimed, pay disproportionate out-of-pocket costs related to pregnancy and childbirth) and insurance companies the costs of health care services related to unintended pregnancy.[32] In response, the information from the CDC and Guttmacher Institute presented above suggests that this cost-saving assertion is at best dubious, as it is possible that increased access to contraception may lead to higher numbers of unplanned pregnancy. In addition, the cost-saving argument begs another question: who will pay for the mandate? Contraceptives are not inexpensive yet HHS is mandating that they be covered as preventive care (no co-pay) in health insurance plans. We already know that the federal government is not going to pay for this coverage (even though it has mandated it) and health insurance providers certainly will not absorb the costs, “accommodation” or not. The reality is that costs associated with the mandate will be passed on to both employers and consumers through higher premiums. Thus, HHS and the Obama Administration have effectively created a new tax that will be paid by anyone who purchases health insurance–including those who object to contraception and sterilization on ethical or religious grounds. Furthermore, the cost argument begs the question as to who is in the best position to determine cost savings. Should cost saving programs be determined by the federal (and state) government, or by those who are actually in the business of providing health care coverage? If contraception really did cut overall health care costs, it stands to reason that insurance companies would already be offering it for free or at least at a discounted rate. The fact that insurers do not offer contraceptives for free or at a discounted rate seems to indicate that these medications do not significantly reduce pregnancy-related costs, if they reduce them at all.[33]

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