Contraceptive Access and Gender Equality: ACA Implementation and Legal Challenges

Overview of the ACA Contraceptive Mandate

The most recent healthcare legislation enacted into federal law is the Patient Protection and Affordable Care Act (ACA) of 2010, though its provisions and mandates have been implemented over a period of years. In 2013, the ACA authorized the provision of preventive services in women's health, including free access to contraceptive services (Sonfield, 2013). The key point in this provision is the elimination of cost-sharing, which was a common practice for most private health care plans prior to ACA implementation. The overall goal is to eliminate economic barriers to preventive healthcare, including contraception.

As Annas and colleagues (2014) point out, the wording of the ACA does not guarantee cost-free access to contraceptives, but does mandate the free provision of preventive services for women's health more generally. The details of exactly what would be covered were determined after the ACA was enacted by the Health Resources and Services Administration (HRSA) within the Department of Health and Human Services (HHS). The HRSA relied on recommendations made by the Institute of Medicine (IOM), which included a list of 20 contraceptives, among which were two intrauterine devices and the emergency contraceptives Plan B and Ella. All the contraceptives on the list were FDA-approved and were not considered to be abortifacients.

The Hobby Lobby Supreme Court Challenge

Around the time the ACA women's health provisions were implemented, two private corporations, Hobby Lobby and Conestoga Wood Specialties, challenged the contraceptive mandate on religious grounds (Annas, Ruger, & Ruger, 2014). Based on their beliefs, the two IUD devices and emergency contraceptives were abortifacients, thereby violating their antiabortion stance. According to the Supreme Court, owners of closely-held corporations would experience an undue burden on their free exercise of religion if the government required them to pay for these contraceptives, since the justices responsible for the majority opinion could not find a compelling government interest for guaranteeing the employees of these corporations access to these four contraceptives.

All three female Supreme Court justices dissented, along with one male justice (Annas, Ruger, & Ruger, 2014). The author of the dissenting opinion, Justice Ginsburg, highlighted a number of perceived weaknesses in the majority opinion, including the possibility that the ruling could open the floodgates to all kinds of ACA challenges based on a long list of religious objections. For example, Catholic owners of a closely-held company could object to the provision of all contraceptives. Within the dissenting opinion, Justice Ginsburg addresses the heart of the matter from the perspective of women's health. The ACA provision, as interpreted by Annas and colleagues (2014), is about moving the healthcare system closer to gender equality, and Justice Ginsburg seems to agree. In her words, putting "health care decisions . . . including the choice among contraceptive methods . . . in the hands of women, with the aid of their health care providers" moves American society closer to the ideal of healthcare gender equality (as cited by Annas, Ruger, & Ruger, 2014, p. 864). Equal access to preventive services for everyone, including low-income individuals, was the purpose of the prohibition against cost-sharing. The ACA therefore attempts to improve the health of all Americans by lowering gender- and economic-barriers to preventive services.

Impact on Women's Healthcare Access

Preliminary evidence suggests the cost-sharing prohibition is having an impact. An online longitudinal survey found that the number of privately-insured women no longer paying out-of-pocket expenses for access to contraceptive services increased from 15 to 40 percent immediately after the ACA provision was implemented (Finer, Sonfield, & Jones, 2014). While this improvement suggests the ACA is having the intended effect, the authors of this study noted evidence for contraceptive preferences by providers based on cost.

The authors of the online survey continued to collect data and published updated results (Sonfield, Tapales, Jones, & Finer, 2015). Based on these new findings, which cover the period from late 2012 to early 2014, the number of privately-insured women taking advantage of free contraceptive services increased from 15 to 67 percent. On a method-by-method basis, the median cost incurred by privately-insured women using oral contraceptives went from $10 to $0 during the study period. The number of women paying nothing for injectable contraception, vaginal ring, or IUDs went from 27 to 59 percent, 20 to 74 percent, and 45 to 62 percent, respectively, during the study period. These findings show that the cost-sharing prohibition mandated by the ACA is having a major impact on the provision of healthcare, at least from an economic perspective.

The findings of the online survey become more impressive when viewed through the statistics published by the HHS (2013). Based on their data, the cost-sharing prohibition affected the lives of close to 47 million women by mandating free access to preventive services; therefore, the number of women who are no longer paying out-of-pocket costs for contraception care is in the millions. Add to this the realization that women face contraceptive choices for about three decades during the course of their lives (Nurse Practitioners in Women's Health, n.d.), and the long-term effect of this provision is probably incalculable. Although 100 percent coverage is the theoretical goal, reaching this number will be impossible due in part to the Supreme Court's Hobby Lobby ruling. Under this and other rulings, religious non-profits and closely-held corporations are exempt from fully complying with the ACA provision (Sonfield, Tapales, Jones, & Finer, 2015).