The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.
While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.
This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.
Insuring Contraceptive Equity,
Nw. J. L. & Soc. Pol'y.