Thursday, April 25, 2019
Greer Donley, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate. 71 Alabama L. Rev. (forthcoming)
Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s Contraceptive Mandate, which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in three ways: it incentivizes them to endure the risks and side-effects of birth control when safer options exist for men; it perpetuates harmful sex stereotypes, like that women are to blame for unwanted pregnancy or that men are indifferent as to whether sex leads to pregnancy; and it fails to financially support the quarter to a third of women that rely on male birth control to prevent conception. The Mandate’s facial sex classification constitutes unconstitutional sex discrimination under the Equal Protection Clause and can only be equitably cured by extending the Mandate to cover male forms of birth control. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new, pharmaceutical methods of male birth control, benefiting men and women alike.