Women and Economic Equality: Access to Birth Control
On October 6, 2017 the Trump administration rolled back the birth control mandate put in place by the Obama administration. The Obama era mandate included birth control in the list of preventative services to women while it forbade insurance companies from charging women a co-payment. The Trump administration expanded the rights of employers to deny women insurance coverage for contraception if the employer has deeply rooted religious or moral convictions. Under the new Trump policy, women who receive contraception at no cost, or very low cost will experience higher out-of-pocket expenses. Many assumed that the Trump administration would state that the mandate was to protect “religious liberty” and the moral choices of employers. Instead, the Trump administration made a statement questioning the merits of birth control. Bloomberg Politics reports
“In the rule released Friday, officials attacked a 2011 report that recommended mandatory birth-control coverage to help women avoid unintended pregnancies. That report, requested by the Department of Health and Human Services, was done by the National Academies of Sciences, Engineering and Medicine – then the Institute of Medicine – an expert group that serves as the nation’s scientific adviser.
“The rates of, and reasons for, unintended pregnancy are notoriously difficult to measure,” according to the Trump administration’s interim final rule. “In particular, association and causality can be hard to disentangle.” (1)
Since the Trump administration’s announcement, California and Washington have announced that they will not follow the mandate because it discriminates against women. Washington has followed their announcement with a lawsuit on the grounds of protecting women from discrimination while upholding their right to privacy. The notable case of Burwell, Secretary of Health and Human Services, Et Al v. Hobby Lobby Stores (Burwell v. Hobby Lobby) laid the groundwork for the new mandate announced by the Trump administration.
Hobby Lobby Stores filed a lawsuit against the Federal government, claiming that requiring employers to cover some contraceptive costs under the Affordable Care Act (ACA) violated their religious beliefs.
Discrimination against women is an issue spanning years of legislation on topics from research to pregnancy to birth control. In 1978 the U.S. Congress determined that discrimination based upon pregnancy was discrimination based on gender. (2) In 2000, the Equal Employment Opportunity Commission ruled that companies that provided insurance for prescription drugs but excluded birth control were violating the Civil Rights Act of 1964. (3) The ACA was signed into effect in 2010, and in 2011 contraception was added to the list of preventative services covered by the ACA.
President Obama’s administration allowed a religious exemption to the mandate. The exemption was meant to apply to churches but not to affiliated nonprofit corporations such as hospitals that do not rely primarily on members of the faith as their workforce. Senator Roy Blunt, the junior Republican Senator from Missouri, felt the compromise was not sufficient and drafted a response to President Obama’s compromise called the Blunt Amendment. The Blunt Amendment, which proposed an “allowance for employers to refuse to include contraception in health care coverage if it violated their religious or moral beliefs”, was voted down by the U.S. Senate in March of 2012. (4) Later, the Obama administration did draft a compromise that the Catholic Health Association accepted. The compromise stipulated that it was the responsibility of the insurers to contact individuals directly about how to obtain contraceptive services,which were provided at no cost, instead of the religious- affiliated employers. The compromise took into account the objections of the United States Conference of Catholic Bishops but still retained free coverage of birth control for women.
The compromise was not acceptable to the owners of Hobby Lobby, who felt that despite the compromise made by the Obama administration their religious convictions were being infringed upon. The Supreme Court of the United States (SCOTUS) heard their case on March 25, 2014. On June of 2014, the SCOTUS handed down their ruling in favor of Hobby Lobby. SCOTUS ruled that an employer’s sincere religious beliefs preempted an employee’s right to legal medical care as long as the employee can receive this care somewhere else. The court stated that this ruling did not place an undue burden on female employees because the government has set up an alternative process that allows workers to bypass the employer and receive coverage. (5) According to the majority ruling it would allow for “corporations to opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs… (without regard to the) disadvantages that religion-based opt-outs impose on others.” (5) Allowing corporations to opt out of providing health care options such as contraceptives creates a barrier to a woman’s right to privacy. Furthermore, if a woman does not have control over her reproductive health, Supreme Court Justice Sandra Day O’Connor wrote in Planned Parenthood of Southeastern PA. v. Casey, she lacks the “ability to participate equally in the economic and social life of the Nation.” (6) Birth control is a leading economic factor for women. Martha J. Bailey wrote
“ Fully one-third of the wage gains women have made since the 1960s are the result of access to oral contraceptives. And while the wage gap between men and women is still significant (particularly for women of color) and must be addressed, access to birth control has helped narrow the gap. The decrease in the gap among 25–49-year-olds between men’s and women’s annual incomes “would have been 10 percent smaller in the 1980s and 30 percent smaller in the 1990s” in the absence of widespread legal birth control access.” (7)
Not all of the Justices agreed with the Majority opinion in the Hobby Lobby case. Justice Ginsburg confirmed this when she wrote that “the Court’s reasoning appears to permit commercial enterprises…to exclude from their group health plans all forms of contraceptives.” (5)
A Right to Privacy
The Burwell v. Hobby Lobby ruling by SCOTUS appears to begin to dismantle the ruling in Griswold v. Connecticut. In the Griswold case, the SCOTUS made a majority decision which stated that “the Constitution protected a right to privacy.” (8) The majority based its ruling on three different Amendments to the Constitution. Justice William O. Douglas wrote for the majority “the right was to be found in the “penumbras” and “emanations” of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment.” (8) In this case, the right to privacy was viewed as the right to “protection from governmental intrusion.” (8) Justice Arthur Goldberg wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment.
The right to privacy and the ability to access contraception allowed women to more fully control their reproductive lives. They were better able to access employment, financial stability and educational opportunities.
Women’s ability to control their reproductive health and access contraception should not be barred from them due to the religious beliefs of their employer. John Rawls, a moral and political philosopher, stated in his Principle of Fair Equality of Opportunity any law which “prohibits discriminatory barriers to access, but requires positive social measures that correct for negative effects on the opportunity, including under-development of skills and talents, that derive from unfair social practices (e.g. a legacy of gender or race bias) or socio-economic inequalities”. (9) Rawls philosophical beliefs may not hold legal authority but they highlight moral obligation to those less advantaged in society. The ruling by SCOTUS enforces negative effects of opportunity upon women such as a lack of education.The National Women’s Law Center states that “statistically, women represent nearly two-thirds of minimum wage workers.” (10)
Births resulting from unintended or closely spaced pregnancies are associated with adverse maternal and child health outcomes, such as delayed prenatal care, premature birth and negative physical and mental health effects for children. (10)
Healthcare Plan Options
When considering employer-based healthcare, it is necessary to think about the impact an employer’s decision to allow access to contraceptives may have on women who are employed. The SCOTUS rightly states “if universal access to contraceptives is a compelling societal interest, then the provision of such access ought to fall first and foremost on the national government and only secondarily be transferred to private parties.” (5) A Federal health care system would address “the central moral importance, for purposes of justice, of preventing and treating disease and disability with effective health care services (construed broadly to include public health and environmental measures, as well as personal medical services) derives from the way protecting normal functioning contributes to protecting opportunity.” (9) Access to birth control should not be reduced to religious or moral beliefs but instead access should be measured by the impact it has on economic opportunity.
Allowing employers to bar access to basic healthcare such as contraceptives may further increase the inability of women to reduce the economic gap that exists in our society, firstly between men and women, and secondly between the economic classes. Instead of creating a just society where one can access financial freedom, educational opportunities and participate in society, allowing an employer to not cover contraception creates a barrier to equality.
1. Edney, Anna, “Trump Officials Dispute the Benefits of Birth Control to Justify Rules,” Bloomberg Politics, October 6, 2017, https://www.bloomberg.com/news/articles/2017-10-06/trump-officials-dispute-birth-control-benefits-to-justify-rules.
2. The U.S. Equal Employment Opportunity Commission. The Pregnancy Discrimination Act of 1978. 1978, 10-31.
3. The U.S. Equal Employment Opportunity Commission. Commission Decision on Coverage of Contraception. 2000, 12-14.
4. Blunt, Roy. Blunt Amendment. 112th Congress, 2d Session. 2012. Retrieved from: http://www.blunt.senate.gov/public/_cache/files/12ca4c96-d98c-4b37-920a-cdb15edb24d4/S.%201813%20Amendment.pdf. Accessed October 29, 2014.
6. Burwell, Secretary of Health and Human Services, Et Al v. Hobby Lobby Stores, INC., Et Al. , 2014; No. 13-354.
6. Planned Parenthood of Southeastern Pa. v. Casey, 91-744(1992).
7. Bailey, Martha J., et al. “The Opt-In Revolution? Contraception and the Gender Gap in Wages,” NBER Working Paper, No. 17922, 2012.
8. Estelle T. Griswold, et al, versus Connecticut. 1965, No. 381 U.S. 479,496.
9. Daniels, Norman. Justice, Health and Healthcare. The American Journal of Bioethics, 2001, Spring; 1(2), 1-16.Retrieved from: http://www.hsph.harvard.edu/benchmark/ndaniels/pdf/justice_health.pdf. Accessed October 29, 2014.
10. National Women’s Law Center. 2014. Retrieved from: http://www.nwlc.org/our-issues/poverty-%2526-income-support/minimum-wage. Accessed October 5, 2014.