JURIST Guest Columnist Avigail Goldglancz, St. John’s University School of Law, Class of 2014, is the author of the eighth article in a 10-part series from the staffers of the Journal of Civil Rights and Economic Development. Goldglancz discusses the current institutional barriers facing women attempting to receive the free contraception granted to them in the Affordable Care Act…

It was a victorious day for women when the Obama Administration promulgated the contraception mandate, which promised women equal access to free contraception. However, while some women rejoiced upon being able to receive this contraception, many women quickly discovered that they were not so lucky. Although the contraception mandate touts its program as “equal and free,” the reality is that a woman’s ability to obtain free contraception depends on who her employer is.

In order to accomplish equal access to contraception, the contraception mandate (one of the provisions of the Patient Protection and Affordable Care Act, also known as Obamacare) requires employers to provide employee health insurance plans with free contraceptive services. Employers that do not provide such plans are fined $100 a day per employee. Although on its face the mandate seems to accomplish the objective of free contraception, it falls short in actuality. This is because certain religious employers, as well as employers that employ less than 50 employees or that have grandfathered health insurance plans, have all been exempted from the mandate and thereby do not have to provide free contraception to their employees.

However, the contraception mandate was created to ensure that all women would have access to free contraception, since most women cannot afford it. Unfortunately, contraception is prohibitively expensive and women desperately need it for a variety of preventive measures. Moreover, women use contraception so that they can accomplish their goals without having to worry that an unplanned pregnancy will postpone such goals.

Although the contraception mandate has been ineffective in providing free contraception to all women, the Obama administration can still accomplish this goal by implementing three alternative plans. First, the Obama administration can incentivize pharmaceutical companies to provide free yearly supplies of contraception to doctors, through the use of tax credits. This would eliminate the need for contraception prescriptions, as doctors would just provide their patients with free contraception. Further, the tax credits will enable the pharmaceutical companies to deduct the cost of the free contraception from their tax bill on a dollar for dollar basis.

Second, all women should be able to receive free contraception from Title X clinics, such as Planned Parenthood, which are designed to provide free contraception to women. However, currently by law, priority has to be given to low-income, uninsured women. To expand the reach, the Obama administration can require that Title X clinics treat all women equally, regardless of income status. Further, the clinics should receive additional federal funding so they have the financial capacity to provide all women with free contraception.

Lastly, although there are over 4,000 clinics and centers supported by Title X, not all women have access to a Title X clinic. Therefore, other clinics and healthcare centers should also be able to provide women with free contraception. To make this possible, the Obama administration can make these clinics and healthcare centers eligible for the 340B federal drug-pricing program. Being a part of the 340B drug-pricing program enables the clinics and healthcare centers to buy contraception at nominal prices, so they in turn can provide free contraception to anyone who needs it.

Implementing one of these alternative solutions would guarantee all women access to free contraception, regardless of their employer, thus fulfilling the Obama administration’s promise of equal access to free contraception for all women.

Avigail Goldglancz earned her B.A. from Charter Oak State College and her paralegal certification from Hofstra University. Her experience includes positions with Schwartz & Fang, P.C., Nassau County Surrogate Court, and Rudin, Aranoff, Metha, & Klein.

Suggested citation: Avigail Goldglancz, The Contraception Mandate’s Compromise: Equal Access to Free Contraception, JURIST – Dateline, Mar. 26, 2014, http://jurist.org/dateline/2014/03/avigail-goldglancz-contraception-mandate.php