Gender Matters in the Fight for Contraceptive Coverage

The newly proposed American Health Care Act—if passed—will affect not only one-sixth of the economy, but also one-half of the population. And yet, no women are included among the 13 senators who make up the new working group expected to write the Senate version of the bill.

Joe Brusky / Creative Commons

“We have no interest in playing the games of identity politics. That’s not what this is about,” a Republican Congressional aide told CNN in defense of the all-male makeup of the committee. “To reduce this to gender, race or geography misses the more important point of the diverse segments of the conference the group represents on policy.”

As a political scientist who studies how some groups’ needs get overlooked by policymakers and by industries, this logic is misguided. Identity is central to this discussion because without diversity in who is consulted, it is easy for groups’ needs to never get considered by people in power. Once groups are left out of a policy, it often can lead to a self-perpetuating idea that they were left out for deliberate reasons, in particular because someone–in the government, or in industries–weighed the potential costs against the potential benefits and concluded that it was not worth it to include them.

Given that both the all-male AHCA senate working group and resistance to several people in key leadership positions at the Department of Health and Human Services are about to reignite the debate over contraceptive coverage, now is a good time for us to remember how and why contraceptive coverage was previously not included in many people’s health policies in the past.

In 1994, a survey conducted by the Alan Guttmacher Institute found that only 15 percent of insurers nationwide offered comprehensive contraceptive drug coverage. In contrast, 85 percent covered contraceptive sterilization, and two-thirds covered abortion.  By 2001, the situation had changed, somewhat. But by then, 49 percent of fee-for-service plans continued to cover zero of the five most common prescriptive contraceptives.

Consequently, women picked up the cost. A study by the Women’s Research and Education Institute in 1994 found that women of childbearing age bore 56 percent of the cost of contraceptives, on paid on average 68 percent more than men for healthcare, due to the cost of contraceptive coverage. Today, that figure is not much different.

When pressed on the disparity, some insurers claimed it was out of financial necessity. A representative from the Chamber of Commerce warned a Congressional Committee that changing the law to mandate coverage would cause some people to lose their coverage altogether, and would stifle people’s freedom to choose “the benefits most appropriate for their personal situations.” By their logic, health insurers were in the business to make a profit, or at the very least, not to expose themselves to unnecessary risk.

Yet, as they delved into the issue, the Guttmacher Institute came to believe that the reason most policies failed to include comprehensive contraceptive coverage was “not because people made a business decisions and said, ‘I am going to cover this, but I am not going to cover that,’” in the words of a spokesperson testifying in a 1994 Congressional Committee. “It is simply that nobody really thought about it very much and somehow, in some cubicle somewhere, somebody made a decision and it is covered or not.”

Having failed to notice the needs or demands of a large segment of the market for health care when designing policies, by the 1990s, many providers had come to see denying access as something that was always rooted in financial necessity. Opponents of this view countered with research suggesting that contractive coverage could save providers in the long run. A 2001 study of the state of California proved that contraceptive coverage was probably not the cash sink that the Chamber of Commerce had warned about. It found that one dollar in contraceptives saved over $14 in expenses associated with unintended pregnancies.

It took years of persistent activism for women to have contraceptive coverage included in their health plans. In the mid-1990s, after seeing little progress at the federal level, advocates launched a state-by-state strategy to mandate that health plans that included prescription drug coverage should also include prescription contraceptives. By 2003, 20 states had mandated health plans include comprehensive contraceptive coverage. Today, 26 states mandate prescription contraceptive coverage for FDA-approved contraception.

Advocates also seized upon openings provided by the 1996 Health Information Protection and Accountability Act to promote non-discrimination. In 1998, they won federal legislation to require that insurance plans for federal employees contain contraceptive coverage, though they failed to bring about a more sweeping mandate that would have been created had the Equity in Prescription Insurance and Contraceptive Coverage Act of 1997 (and then reintroduced repeatedly – in 1999, 2001 and 2007) failed.

Advocates also took to the courts, brining a series of cases to challenge employers under Title VII of the Civil Rights Act of 1964.  A series of court cases brought by contraceptive advocates led to a ruling that employers with more than 15 employees should be on notice that “excluding contraceptives from employee health plans that cover other prescription drugs constitutes gender discrimination”. As a result, many employers added contraceptive coverage to avoid the risk of future litigation.

The 2010 Affordable Care Act mandated contraceptive coverage as one of the essential health benefits that approved plans must contain. This was the culmination of a long battle by women’s advocates to include what had been overlooked by private health insurers. But as this short history reveals, advocates for contraceptive coverage won this through a slow and fraught process. They had to challenge an exclusion that had begun almost by accident and had since hardened into an economic faith that the market should had provided this if it were indeed cost-effective. And they had to find openings to advance their argument in legislatures and the courts.

In the meantime, this incurred costs to the legal system, to insurers, and to women. It could have been avoided had insurers considered the demands of a large segment of their market from the beginning. And this is why it is important to consider the needs of diverse populations when making policies that will affect them, in the AHCA and beyond.

To give the anonymous GOP source who complained of identity politics some credit, elected officials are often asked to provide representation to people who do not resemble them–it is, in fact, their job. And it is a mistake to assume that a shared identity necessarily translates into shared beliefs or values. Indeed, President Donald Trump just last week named Charmaine Yoest, a prominent critic of contraceptive coverage (and skeptic that contraception is even effective), as Assistant Secretary of Public Affairs at HHS. And even groups who have a seat at the table may continue to overlook issues, especially once their existence is believed to be due to market considerations. Clinton’s failed 1994 health reform bill failed to include contraceptive coverage.

But leaving women out of this process is likely to harm the chances that there are any serious discussions over women’s needs in the Senate. “I wouldn’t want to lose my mammograms,” joked Senator Pat Roberts from Kansas, before the failure of the first healthcare proposal to come up for a vote. Like their colleagues in the House, Senate Republicans may be trying to avoid pushback that would come from having more women involved in the process, but they are delusional to think that this will work in the long run.

Yes, they may sidestep “identity politics” today, but they will have to confront it elsewhere, whether in the courts or the voting booth.




Chloe Thurston is an assistant professor of political science and a faculty associate at the Institute for Policy Research at Northwestern University. She is a Public Voices Fellow through The OpEd Project.