In Defense of Contraception: More Than A Right, A Medical Reality.

People often talk about contraception as a right. While I agree with the statement, it unfortunately creates a straw man argument that conservatives have used to women’s detriment. This is because the notion of rights immediately invites arguments about how rights are defined, where they come from, who grants them, and why. These questions are fraught with moral relativism and unfortunately society is not at a point where women’s right to control their own bodies is a given. We simply aren’t there. Further, we are also not at a point where women’s right to their own sexuality is a given either. Without those two, arguing women’s right to contraception is a non-starter. Further, from a practical perspective, rights are not absolute. Internationally, something may be a right in one country and not in another. Something may be a right under religious dogma but not under legal doctrine and vice versa. Indeed, articles that take issue with whether or not contraception is a right like to go back to the Constitution or any other source of what we usually refer to as rights and point to the fact that, no, contraception is not a right, because nobody has granted women the right to access contraception per se. (Evidently, this line of reasoning as to US rights ignores the existence of Griswold v. Connecticut, the Supreme Court decision holding that a state’s ban on the use of contraceptives violated the right to marital privacy and Eisenstadt v. Baird, which extended the right to unmarried individuals. But that is for another day).

The issue of women and contraception has become a focal point of current affairs through the battle over whether or not under the Affordable Care Act (“Obamacare”) employers should be forced to offer insurance plans that cover contraception. Arguing that contraception must be covered by Obamacare because it is a right misses the mark and takes proponents on a pointless quest. The real question should be the following: why should female contraception be treated any differently than any other prescription medication under Obamacare? In other words, the question shouldn’t be why contraception should be covered but why it shouldn’t be covered. Framed that way, opposition has to both come out of the shadows and inevitably loses its strength.

In order to go forward in that direction, however, we have to take a step back. Conservatives have successfully framed the debate in a very pernicious way. The current discussion is held in terms of whether or not companies should be “forced” to provide contraception. This is both profoundly misleading and inflammatory. It creates the false-reality that employers are forced to do something akin to distributing contraception to employees. Evidently, this leads to the straw man argument referred to above: how can someone force an employer who morally objects to contraception to provide it? And so in circles we go. This ignores several facets of how Obamacare actually works. First, Obamacare forces employers to provide health insurance—not medication, let alone contraception. The more accurate representation of the conversation is whether employers should be forced to carry insurance that covers contraception. Having arrived at this more accurate position, the question becomes: why should employers be allowed to carry health insurance that treats contraception any differently from other medications? Which in turn leads to the better question: why should employers be allowed to discriminate against women? And this is where proponents of insurance coverage for contraception find themselves with much stronger footing. While society may not fully recognize a woman’s right to equal sexual autonomy, society is a lot closer to agreeing that there are no legitimate “moral” or “conscience” objections to treating men and women equally at work.

Conservatives have successfully hijacked the conversation to make contraception about women’s morality rather than describing it as a medical necessity and an employment benefit. Yet, those two are far more likely to gain ground. The argument always gets reduced to whether women deserve contraception and whether employers should be forced to facilitate women’s promiscuity. The idea is that because women who take contraception are having sex, they are therefore engaging in “irresponsible” behavior. The so-called logical conclusion is that employers are being forced to subsidize women’s lack of responsibility and accountability. Proponents of insurance coverage for female contraception must stop engaging on this turf. The first step to doing this is to re-frame the conversation away from whether contraception is a “right.” At the very least, doing so would force conservatives to explain why contraception is not a medical necessity. Why is this good? Because they can’t.

Obamacare uses the term “medical necessity” three times and does not define it. The American Medical Society, however, does. According to the AMA’s January 2011 Statement to the IOM medical necessity is defined as: “Health care services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing or treating an illness, injury, disease or its symptoms in a manner that is: (a) in accordance with generally accepted standards of medical practice; (b) clinically appropriate in terms of type, frequency, extent, site, and duration; and (c) not primarily for the economic benefit of the health plans and purchasers or for the convenience of the patient, treating physician, or other health care provider.” Consistent with this, Obamacare requires insurance carriers to offer “essential health benefits” and specifies that the essential health benefits package must cover the following general categories of services:
  • Ambulatory patient services;
  • Emergency services;
  • Hospitalization;
  • Maternity and newborn care;
  • Mental health and substance use disorder services, including behavioral health treatment;
  • Prescription drugs;
  • Rehabilitative and habilitative services and devices;
  • Laboratory services;
  • Preventive and wellness services and chronic disease management; and
  • Pediatric services, including oral and vision care.
Based on this, Obamacare-compliant insurance plans cover one type of birth control per person from each of the FDA-approved categories at no out-of-pocket cost. There are 18 FDA-approved categories. Obamacare-compliant insurance plans also cover the following drugs: asthma medication, insulin, Viagra, blood pressure medication, and cancer treatments. Obamacare also covers Hep B screening for adults at high risk, Hep C screening for adults at high risk, HIV screening for everyone ages 15 to 65, STI prevention counseling for adults at high risk, and syphilis for adults at high risk. Nobody is up in arms about those services, yet if one wanted to talk about “responsibility” and “morality” certainly these services should at the very least be in the same bucket as female contraception. But that doesn’t happen—because the former are all unisex services while the latter is very clearly female health need.

To the extent opponents of contraception insisted in their opposition, asking them why contraception should not be covered (the way all of the above drugs and services are covered) would lay bare their issue with female contraception: it enables female agency. And in a world where morality by proxy is so crucial to self-righteousness, imposing morality on women’s sex lives is quintessential. Plain and simple. This position, luckily, invites an effective and straightforward response: women want to have access to affordable contraception because it is a basic medical service and necessity, the same way STI testing, blood pressure medication, and asthma drugs are. Not being pregnant allows women the very basic right (and this is a right) to govern their own life: when to make a career move, when to take professional risks, when to save up, when to buy a certain house, when to move across the country, when to go to school, and many other decisions that are affected by child bearing. When framed this way, contraception becomes a medical necessity in the same way blood pressure medication, anti-depressants, insulin, and other prescription medications are necessities. Without contraception women cannot both be sexually active adults and have control over their own reproductive lives. They have to resort to one of two things: complete abstinence or reliance on men to use male based contraception, such as condoms. Either way, they have to give up control of their sexuality by either abdicating it or handing it over to their male partners. That is both unacceptable and not something we ever dream of asking from men.

To further strengthen this argument, let’s debunk some myths about who uses contraception. Despite hand-wringing about the “irresponsible” and “debauched” unmarried women needing their “whore pills,” 77% of married women use contraception while only 42% of never-married women use contraception. Why? Because, as reported by the Guttmacher Institute, married women are the most likely to be sexually active. Among sexually active women, 93% of married women use contraception while only 83% of never-married sexually active women use contraception. Religious-based opposition is likewise disingenuous when we look at the number of religious women using contraception. A whopping 89% of sexually active Catholic women who don’t want children use contraception and 90% of Protestant sexually active women who don’t want children use contraception. Also according to the Guttmacher Institute, “[a]mong sexually experienced religious women, 99% of Catholics and Protestants have ever used some form of contraception.” So do the remaining 10% of Catholic women use natural forms of birth control? No. According to R.K. Jones and J. Dreweke, also from the Guttmacher Institute, “[o]nly 2% of at-risk Catholic women rely on natural family planning; the proportion is the same even among those women who attend church once a month or more.” Based on this, religious opposition to providing health insurance which, in turn, covers contraception is—in plain terms—bullshit. The vast majority of women, whether religious or not, married or not, use contraception. Why? Because it is a necessity.

Nobody questions whether health insurance should cover anti-depressants or blood pressure medication or insulin or, of all things, Viagra. Also, nobody argues there is a right to any of these, yet they are covered. While it is true that our society is witnessing a movement towards claiming that access to healthcare is a right (which I don’t disagree with), again, this particular reasoning gets us nowhere closer to effectively advocating for covering contraception. What needs to happen is a paradigm shift. The conversation must no longer be about whether contraception is a right but whether there is any reason to treat contraception any differently than we treat other prescription medications that help people maintain the status quo with respect to their health. Insulin doesn’t cure diabetes; it maintains a status quo so that people taking it can continue going about their life. Anti-depressants don’t cure depression; they allow a person to maintain mental health status quo so they can go about their life. Blood pressure medication does not cure high blood pressure; it maintains the status quo (low blood pressure) so people can go about their lives. Similarly, contraception maintains the status quo (lack of a pregnancy) so women can go about their lives. Nobody asks whether diabetics have a right to their insulin: Did they eat right? Were they irresponsible in their lifestyle choices? Nobody asks whether people taking blood pressure medication have earned it: Did they avoid eating red meat? Did they exercise? Did they quit smoking? Nobody even asks if STI testing is a right: Did these people have unprotected sex? Are they bring promiscuous? In fact, no other healthcare service carries with it the moral judgment foisted on contraception, including other sex-related healthcare services.

Contraception allows women to have healthier pregnancies, to space births, and to limit their family size as desired. In addition, pregnancies that are too frequent or too late or too early in a woman’s life have negative health consequences. Finally, women’s ability to control their childbearing has a direct positive impact on their ability to participate in the workforce, on their pursuit of education, on their mental health, their happiness, and their children’s happiness. In what universe are these things not medical benefits derived from necessary prescription medication? If Viagra is covered (and it is!) then there is absolutely no valid excuse to deprive women of access to female contraception. When people want insurance that covers erectile dysfunction medication, the response is not that men should simply give up on sex. The same needs to be true for women.

As a society, we are constantly reminding everyone and each other about how important it is for people to have equal access to opportunities, to have equal access to the ability to pursue happiness. Indeed, the “pursuit of happiness” is a right recognized by our Founding Fathers. Public figures keep underscoring how important it is for every citizen to be productive and to contribute to our economy, to contribute to our culture, to contribute to our scientific endeavors, and to reach their full potential. Yet when it comes down to women, we tell them that we expect them to do all those things but they’re not allowed to control the one thing that can truly get in the way: their reproductive lives. In other words, contraception allows a woman to plan when she’s going to go to school, when she’s going to get a job, when she’s going to live in a certain city, when she’s going to make particularly significant investments of time and energy into her work, into herself, into her marriage, and into other aspects of her life. Contraception allows women to decide when and how to invest their resources, their time, their energy, their affection and their intellectual capacities. It is very simply at the heart of the way a woman manages her life. Denying women access to insurance that covers contraception is nothing short of denying a woman the right (and this is truly a right) to manage her human resources. Contraception for women is a medical necessity because a pregnancy is a long, physically and mentally challenging process. Even easy, wonderful, uncomplicated pregnancies are demanding. And after those pregnancies, regardless of whether they are complicated or uncomplicated, comes the reality of parenthood. This burden is more heavily shouldered by women than from men. Having a child does require adaptation in a woman’s life more so than a man’s, even in “egalitarian” marriages.

As a mother of four I wholeheartedly support women having families and careers. I also know how critical access to contraception was in order for me to get to where I am today. I spaced and timed my pregnancies as I saw fit so that they only minimally interfered with my career. This allowed me to manage things so that I could still reach my goals, including the goal of having (a lot of) children and running a law firm. We cannot both encourage women to Lean In, be leaders, to go to school, have careers, join the political world, and do all of the things that we expect and admire women to do, while at the same time telling them that it is immoral for them to control their own bodies.

Finally, opponents of insurance coverage for contraception like to skew the argument by saying they don’t oppose contraception, they just don’t think insurance should cover it. This brings us back to our initial point: Why not? Insurance covers all types of other medication that allows people to have happy, healthy, prosperous lives. It gives people all sorts of ways to manage a variety of issues ranging from chronic disease, to chronic pain, and anything in between. Contraception is no different. From a scientific and medical perspective contraception is just another way for human beings to maintain the status quo with respect to their body so that they can go on about their business and do all of the other things that human beings are expected to do; work, love, live, have hobbies, travel, raise children they already have without having more. If somebody can claim, which they have absolutely the right to do, that giving them blood pressure medication so they can enjoy their grandchildren, or giving them allergy medication so they can enjoy walks in the park, or giving people insulin so that they can manage their diabetes, there is no difference between any of those things and contraception, which is very simply a way for women to manage their fertility.

Contraception is not an abstract legal concept. Contraception is a reality for the overwhelming majority of women. Depriving women of access to insurance that covers contraception is just another way to tell them they are not entitled to “life, liberty, and the pursuit of happiness.”

So next time someone tells you Obamacare should not force employers to offer insurance that covers female contraception, don’t tell them why it should, ask them why it shouldn’t.


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