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The Contraception Mandate’s Compromise: Equal Access To Free Contraception

Rachel and her husband Sam recently welcomed a beautiful baby boy into their lives.  Due to a birth complication, Rachel is cautioned against becoming pregnant again as another pregnancy can rupture her uterus and cause her to hemorrhage to death.  Therefore, Rachel must use contraception in order to avoid another pregnancy.  However, the cost of contraception exceeds Rachel and Sam’s monthly budget and they cannot afford it.  Should they abstain from having sexual relations?  Should they risk it? Should they even have to make such a choice, when the decision is between life and death?

Rachel’s predicament illustrates why it is so critical for women to have access to contraception.  However, using contraception to prevent dangerous pregnancies is only one of the many reasons why women need access to contraception.  For example, women use contraception to reduce the risk of ovarian cancer or to prevent ovarian cysts and endometrial cancer from developing.  Moreover, contraception does not just impact a woman’s health, but a baby’s health as well.  This is because if a woman does not use contraception and unknowingly becomes pregnant, the requisite prenatal care will be delayed.  Additionally, babies of unplanned pregnancies are at a greater risk of being born at a lower birth weight or dying in the first year of life.  Lastly, through the use of contraception, women can strive to accomplish their goals without having to worry that an unplanned pregnancy will postpone such goals.

So if contraception provides all these benefits, shouldn’t all women be able to access it?  Yes, in a perfect world.  However, because contraception is prohibitively expensive many women, such as Rachel, cannot afford it.  The most effective contraceptive drugs can cost anywhere from $590.00 to $1,200.00 per year, depending on the type of contraception.  Even the “inexpensive” contraception, such as IUDs and anti-contraceptive drug implants, can cost anywhere between $500.00 and $1,000.00.   The problem is further exacerbated by the fact that most health insurance plans do not cover contraception, and the plans that do cover contraception only cover 53% of the cost.  Therefore, many women cannot access contraception and take advantage of its benefits.

The importance of contraception and the need for all women to have access to it resulted in the Obama Administration’s promulgation of the “Contraception Mandate,” which is one of the provisions of the Patient Protection and Affordable Care Act of 2010- otherwise known as “Obamacare.” (http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/html/PLAW-111publ148.htm)  The goal of the Contraception Mandate is to provide women with equal access to free contraception.  In order to accomplish this, employers’ health insurance plans now must provide free contraceptive services to all employees.  Employers that do not provide free contraceptive services in their health plans are fined a hundred dollars a day per employee.

Sounds surreal, right?  Well it is, because since the law went into effect only a small fraction of the 97 million women between the ages of 18 and 64 have actually been able to obtain free contraception.  Why?  Because many employers are actually exempt from providing free contraception, despite the Contraception Mandate requiring compliance by all employers.  For example, employers with

It is estimated that 191 million Americans belong to grandfathered plans.
grandfathered insurance plans in place, employers who employ less than fifty full time employees, and certain religious employers are all exempt from the Contraception Mandate and therefore do not have to provide free contraception to their employees.

[box type=”bio”]“The Catholic Church clearly teaches that the use of artificial contraception in all its forms…is gravely immoral, is intrinsically evil, is contrary to the law of nature and nature’s God. This is and always has been the uninterrupted teaching of the Catholic Church from the beginning.” Glennon P. Flavin, Bishop of the Diocese of Lincoln[/box]
However, there are still more exempt employers to come.  You see, the Contraception Mandate has infuriated religious employers, who do not want to be forced to provide contraception to their employees since it goes against their religious beliefs.  Although religious employers were granted an exemption, many religious employers do not qualify for it since they cannot meet the Obama Administration’s requirements for a “religious employer.”  To be considered a “religious employer” an organization has to (1) have the inculcation of religious values as its purpose; (2) primarily employ persons who share its religious tenets; (3) primarily serve persons who share its religious tenets; and (4) be a non-profit organization.  Other than churches, synagogues, and mosques, many religious employers fail to meet the requirements.  So the non-exempt religious employers need to either provide contraceptive coverage, which contradicts their religious beliefs, or pay the hefty fine of $100 a day per employee.  Since choosing between violating your faith or being fined for practicing it is no choice at all, the non-exempt employers have been rapidly filing lawsuits, desperately seeking an exemption from the Mandate.

“We take the government at its word and will hold it to it.” Wheaton v. Sebelius, United States Court of Appeals, District of Columbia Circuit.
To date, sixty-seven lawsuits have been filed by religiously affiliated hospitals, universities, and private businesses against the Obama Administration. (http://www.becketfund.org/hhsinformationcentral/) So far, twenty-nine for- profit companies have received an injunction barring the enforcement of the Contraception Mandate.  In one of the most significant cases, Wheaton College v. Sebelius, the Obama Administration promised the United States Court of Appeals for the D.C. Circuit that it would never enforce the Contraception Mandate in its current form against the religious college or those similarly situated.Furthermore, the Administration promised that there would be a different rule for religious entities that will be issued by August 2013.  Therefore, between this critical case and the injunctions granted, the non-exempt religious employers are on their way to receiving their desired exemption.
“Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities, and religious institutions to shut their doors.” – Hannah Smith, Becket Fund

Thus, the Contraception Mandate, which was intended to provide all women with free contraception, has FAILED.  While some women are entitled to receive free contraception from their employers, many women are not afforded the same opportunity.  Therefore, the Contraception Mandate is not the answer to free contraception.  However, since access to free contraception is so critical, the Obama Administration must utilize other avenues to make this goal a reality.

The Obama Administration should instead incentivize pharmaceutical companies to provide free yearly supplies of contraception to doctors, through the use of tax credits.  This would eliminate the need for contraception prescriptions, as doctors would just provide their patients with free contraception.  Further, the tax credits will enable the pharmaceutical companies to deduct the cost of the free contraception from their tax bill on a dollar for dollar basis.

Moreover, all women should be able to receive free contraception from Title X clinics, such as Planned Parenthood, which are designed to provide free contraception to women.  However, by law priority has to be given to low-income, uninsured women.  (http://uscode.house.gov/statutes/1970/1970-091-0572.pdf) Therefore, women that cannot afford contraception but are not poverty stricken will be turned away from Title X clinics.  To expand the reach, the Obama Administration should require that Title X clinics treat all women equally, regardless of income status, and the clinics should receive additional federal funds in order to have the financial capacity to provide all women with free contraception.

Lastly, although there are over 4,000 clinics and centers supported by Title X, not all women have access to a Title X clinic.  Therefore, other clinics and healthcare centers should also be able to provide women with free contraception.  For this to be possible, the Obama Administration has to grant these clinics and healthcare centers eligibility for the 340B federal drug-pricing
The intent of the 340B drug-pricing program is to allow qualified entities to “stretch scarce federal resources as far as possible, reaching more eligible patients and providing more comprehensive services.”
program. (http://www.hrsa.gov/opa/)  Being a part of the 340B drug-pricing program will enable clinics and healthcare centers to buy contraception at nominal prices so that they in turn can provide free contraception to anyone who needs it.

Implementing this three faceted solution would solve Rachel’s dilemma, as Rachel would be able to receive free contraception from either her doctor, a Title X clinic, or a clinic or healthcare center that qualifies for the 340B drug-pricing program.  Furthermore, this solution does not infringe on religious freedom nor does it impose on employers.  Instead, the goal of the Contraception Mandate can actually be accomplished, as all women will finally be guaranteed equal access to free contraception.

Image from M.Markus. Licensed under Creative Commons – Attribution 2.0 Generic.

Avigail Goldglancz is the Associate Editor of the Journal of Civil Rights and Economic Development ’13-’14.

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