Promoting Access to Contraception and Opposing Threats to its Availability at Home and Abroad

If the right of privacy means anything, it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted)

Together, two U.S. Supreme Court decisions, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), established that both married and single individuals have the right to obtain and use contraceptives. These decisions were critical victories in the long struggle waged by the ACLU and others to guarantee access to contraceptives to anyone who wanted them. The Court held that the Constitution protects a "right of privacy" that encompasses individuals' decisions about intimate, personal matters such as childbearing. For women and men alike, the ability to obtain contraception is central to reproductive freedom. 

Recently, Congress and the states have been considering several kinds of legislation that would affect access to contraception both in the U.S. and abroad. Some of these bills would expand reproductive rights by requiring insurance plans to cover contraception. These "contraceptive equity" bills would increase the availability of contraceptives and, as a result, advance public health goals. In contrast, the other initiatives under consideration threaten the availability of contraception. Both in Congress and in the states, anti-choice legislators have introduced bills that would force minors to get their parents' permission before they could obtain contraceptives. Congress is also considering legislation that would cripple the U.S. program of international family planning assistance. These bills would hurt millions of teenagers and adults and must be stopped.

The Gender Gap in Insurance Coverage

A shocking gender inequity exists in health insurance today: a lack of coverage for contraceptive supplies and services. While most insurance plans cover prescription drugs and outpatient medical services in general, they typically exclude prescription contraceptives and outpatient contraceptive services from that coverage. For example, although 97% of large group indemnity plans cover prescription drugs in general, only 33% cover oral contraceptives, the most widely used method of reversible contraception. Fifty-one percent of large group indemnity plans do not cover outpatient contraceptive services such as exams. Nearly half of all large group indemnity plans and preferred provider organizations, 19% of point-of-service networks, and 7% of health maintenance organizations cover no reversible contraceptive methods at all. Even plans that do provide some coverage for contraceptives tend not to cover all five of the most common methods of reversible contraception: oral contraceptives; the intrauterine device; the diaphragm; the implantable device, Norplant; and the injectable contraceptive, Depo-Provera. 

This gap in coverage has a disproportionate impact on women. Women spend over 90% of their reproductive years trying to postpone or avoid pregnancy. According to Dr. Luella Klein, Director of Women's Health Issues for the American College of Obstetricians and Gynecologists (ACOG), "There's nothing 'optional' about contraception. It's a medical necessity for women during 30 years of their lifespan." Largely because of the insurance industry's failure to cover contraceptive supplies and services, women of reproductive age spend approximately 68% more than men in out-of-pocket health care costs. 

The insurance industry's failure to cover contraception contributes to this country's high rate of unintended pregnancy, which is twice that of other developed nations. More than three million unintended pregnancies occur here annually, and half of those end in abortion. When women have to pay for contraception out of pocket, some forego using any contraception at all. Of every 100 sexually active women not using a contraceptive method in a given year, 85 will become pregnant. Other women feel constrained to choose the least expensive method, rather than what may be the most medically appropriate and effective method for them. The most effective methods also tend to be the most expensive ones. Opting for the least costly methods increases the likelihood of unintended pregnancy.

A Nationwide Cure for the Insurance Gender Gap

In May 1997, Senators Olympia J. Snowe (R-ME) and Harry Reid (D-NV) jointly introduced S. 766, the "Equity in Prescription Insurance and Contraceptive Coverage Act" (EPICC), to remedy the gap in insurance coverage. In the House of Representatives, Rep. James C. Greenwood (R-PA), Rep. Nita M. Lowey (D-NY), and Rep. Henry A. Waxman (D-CA) introduced a companion bill, H.R. 2174. Under EPICC, insurance plans covering prescription drugs and devices in general would be required to cover prescription contraceptive drugs and devices approved by the Food and Drug Administration. Plans covering outpatient medical services in general would be required to cover outpatient contraceptive services. 

EPICC is an equitable, bipartisan solution to the inequity between men's and women's health care costs. The bill would reduce or eliminate the current unjust financial burden borne by women. 

In addition to addressing a basic issue of fairness, EPICC would also serve significant public health goals. By eliminating the financial barriers to effective contraceptives, this legislation would decrease the number of unintended pregnancies and reduce the need for abortion. Improved access to contraceptives would allow more women to control the spacing of their pregnancies, which helps to reduce the incidence of infant deaths, low birth weight, and maternal health complications associated with pregnancy. 

Since EPICC was first introduced, many legislators have recognized its potential benefits and appeal to constituents. In fact, in June 1998, the House Appropriations Committee took a step toward making EPICC a reality for the 1.2 million women who are federal employees or their dependents. It voted to require the federal government, the nation's largest employer, to provide contraceptive coverage in the health plans offered to its employees. EPICC itself, which would affect insurance plans nationwide, now has 35 co-sponsors in the Senate ¹ and 119 in the House, ² and the list is constantly growing. 

Solutions in the States

Many state legislatures have been considering their own versions of EPICC. This year, Maryland enacted a contraceptive equity bill, and legislators introduced such bills in Alaska, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Massachusetts, Missouri, New York, Oklahoma, South Carolina, Utah, Vermont, and Washington. A number of other states have enacted limited reforms. Hawaii and Virginia have laws requiring insurers to offer employers the option of contraceptive coverage, which the employers may decline to purchase. Montana, New Mexico, Texas, and West Virginia have laws that mandate coverage but apply to only one type of health care plan or one form of contraception. 

Stumbling Blocks

Despite the obvious merits of EPICC and the similar state bills, resistance has arisen from two directions: the insurance industry and anti-choice organizations. The insurance industry does not like government mandates and often opposes them even if they would be cost-effective, as the contraceptive equity mandates would be. According to the industry's own estimates, if insurance policies were to include coverage for contraceptive supplies and services, the annual cost increase would be only $16.00 per enrollee. By improving access to contraception, insurers would ultimately pay less for abortions, prenatal care, delivery, and pediatric care -- all of which can cost considerably more than contraceptives. 

Although anti-choice groups have sometimes spoken of reducing the need for abortions, they have not supported EPICC or its state analogues. Instead, they have opposed the legislation outright or tried to add restrictive amendments. The American Life League opposes EPICC because the bill "ignores the tragic physical, emotional, and spiritual side effects of all contraceptives." In the League's view, "The contraceptive mentality rejects a child as a gift from God." League president Judie Brown denounced ACOG's endorsement of EPICC as "a direct attack on the family and motherhood."

The Catholic Church and associations of Catholic health care providers have also tried to weaken EPICC and the similar state bills by attaching exemptions commonly known as "conscience clauses." Depending upon how they are written, these would permit either employers or insurers, or both, to decline to provide contraceptive coverage if they raise religious or moral objections to doing so. But why should a corporation be able to impose a religious restriction on health care options on employees who do not share the corporation's views? The right to make a conscientious, personal decision about whether or not to use contraceptives should generally rest with the patient, not with the patient's employer or insurer. Battles over conscience clauses roiled several legislatures this year. California's contraceptive equity bill succumbed to a gubernatorial veto because it did not include such an exemption. In Maryland, pro-choice legislators succeeded in enacting a contraceptive equity bill, but this victory came at the cost of permitting religious organizations to opt out of covering contraception for their employees. 

Contraceptive equity bills can become vehicles for other anti-choice amendments as well. In West Virginia, for example, a group of legislators recently sponsored the "Women's Access to Health Care Act" to reduce institutional barriers and facilitate women's direct access to providers of gynecological care. As the bill moved toward passage, however, anti-choice legislators attached a so-called "partial-birth abortion" ban that criminalizes a wide array of safe and common abortion procedures. Pro-choice legislators, unable to defeat the amendment, were faced with the difficult choice of voting "no" on the "Women's Access to Health Care Act" or voting "yes" on a "partial-birth abortion" ban. Ultimately, the bill passed with the ban in place. Our legislative experience teaches that any bill aimed at expanding women's reproductive health options may thus invite sabotage from its opponents. A strategy for advancing pro-choice legislation must therefore be carefully crafted to anticipate and minimize this risk.

ACTION NEEDED: Check to see if your federal legislators are already co-sponsoring EPICC, and if they are not, urge them to become co-sponsors. Ask them to approve contraceptive coverage in the Federal Employees Health Benefits Plan. Use the letter below as a model or visit the ACLU's Internet site at "/action/epicc.html" to send your federal legislators a free faxed message, which you can personalize. If a contraceptive equity bill is under consideration in your state, urge your state legislators to enact it. Ask your federal and state lawmakers to resist any anti-choice amendments that may be added. The push for contraceptive equity clearly has momentum and strong public support. Even if legislation is not enacted before the 105th Congress ends in 1998 or if it does not pass in your state this year, this issue is likely to resurface in the coming years. 

MODEL LETTER Dear [federal or state legislator]: As your constituent, I urge you to support [EPICC or other contraceptive equity legislation]. This bill would remedy a serious gap that now exists in health insurance coverage: most plans do not cover or inadequately cover contraceptive supplies and services.  This gap has a disproportionate impact upon women, who spend 90% of their reproductive years trying to postpone or avoid pregnancy. For women, reproductive health care is basic health care. Largely because of the insurance industry's failure to cover contraceptive supplies and services, women of reproductive age spend approximately 68% more than men in out-of-pocket health care costs.  In addition to redressing this inequity, the legislation would serve public health goals. By eliminating the financial barriers to effective use of contraception, the bill would lower [this nation's] [this state's] high rate of unintended pregnancy and would reduce the need for abortion. Improved access to contraceptives would allow more women to control the spacing of their pregnancies, which helps to reduce the incidence of infant deaths, low birth weight, and maternal health complications related to pregnancy.  Please sign on as a co-sponsor of [EPICC or other contraceptive equity legislation] and urge your colleagues to join you in getting it enacted. In addition, please resist any amendments that would reduce the bill's impact or compromise other critical reproductive rights.  [Your name and address]

2. THE ACLU OPPOSES PARENTAL CONSENT REQUIREMENTS WHEN MINORS SEEK CONTRACEPTIVES 

Proposals requiring teenagers to get their parents' consent before obtaining contraception violate long-held standards in both public health policy and law. Although it is certainly desirable for teens to involve their parents in their health care decisions -- and many teens do so -- it is a serious mistake to coerce this involvement.

Teenagers and the Right to Privacy

The American Medical Association, the American Academy of Pediatrics, the American College of Physicians, and the American Public Health Association all recommend guaranteeing confidentiality to adolescent patients. These medical experts attest that when teenagers' privacy is protected, they are more likely to address sensitive medical needs. Teens are encouraged to take steps to protect themselves from unwanted pregnancy and sexually transmitted diseases when they know that they can obtain contraceptives and condoms confidentially. 

But parental consent requirements would undermine this confidentiality and thus scare teenagers away from clinics and doctors' offices. The consequences would be disastrous. The number of teenage pregnancies -- now nearly one million per year -- would rise, as would the number of abortions sought by desperate young women. Teens who feared breaches of their confidentiality would avoid not just contraceptive services but all reproductive health care, including routine gynecological exams and screening for sexually transmitted diseases. 

Moreover, mandatory parental consent for contraception would not reduce adolescent sexual activity, as its proponents claim it would. They believe that confidential access to contraceptives encourages teens to become sexually active. But, in fact, studies show that teenagers seeking family planning services for the first time have already been sexually active for nearly a year, on average. 

Like public health policy, the law, too, upholds minors' privacy rights. In a long line of federal cases, the courts have concluded that the Constitution protects a minor's right to privacy in obtaining contraceptives. In a 1977 decision in Carey v. Population Services International, for example, the Supreme Court relied on minors' privacy rights to invalidate a New York law that prohibited the sale of condoms to minors under 16. The Court reasoned that the state has even less interest in regulating teens' access to contraception than in regulating their access to abortion: 

Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is . . . foreclosed.

The Court held that the state interest in discouraging minors' sexual activity did not justify withholding from them the means to protect themselves. As Justice Stevens explained, to deny teenagers access to contraception in an effort to impress upon them the evils of underage sex is as irrational as if "a State decided to dramatize its disapproval of motorcycles by forbidding the use of safety helmets." The Constitution forbids this kind of "government-mandated harm." 

Federal statutes also afford protection for minors' privacy rights. Two major federal sources of family planning funds -- Title X of the Public Health Service Act of 1970 and Medicaid (Title XIX of the Social Security Act of 1965) -- require the confidential provision of contraceptive services to anyone who seeks them, regardless of age or marital status.

The Present Threat in Congress

Despite the strong foundations underpinning minors' privacy rights, anti-choice lawmakers have been working to undo the existing protections for confidentiality for teenagers. In 1997 and again this year, Rep. Donald Manzullo (R-IL) has proposed an amendment to Title X that would require parental consent for contraception. His current bill, H.R. 3230, would bar family planning projects funded by Title X from providing contraceptives to unemancipated minors without parental consent, a court order, or parental notification five business days in advance of providing contraceptive services. Rep. Manzullo has further vowed to attach his parental consent proposal to the Fiscal Year 1999 Labor/Health and Human Services appropriations bill. 

Another anti-choice member of Congress, Rep. Kevin Brady (R-TX), has introduced a similarly dangerous bill, H.R. 2941. It would allow states participating in certain programs that match federal funds with state funds, such as Medicaid, Title X, and Temporary Assistance for Needy Families, to bar the use of state matching funds to purchase prescription drugs -- including contraceptives -- for minors unless the minors obtained parental consent.

Rep. Manzullo's and Rep. Brady's proposals are especially threatening because they are tied to funding programs. The courts have proved tolerant of restrictions attached to public funds. Individuals' privacy rights are therefore at more serious risk when the exercise of those rights depends on a public funding program than when no governmental spending is involved. 

The Threat in the States

A number of states, too, are attempting to interfere with minors' confidential access to contraception. They have not been deterred by Utah's failed efforts in the 1970s and 1980s to impose parental consent and notification requirements on minors seeking contraceptives. Despite two federal court decisions, T.H. v. Jones (1975) and Planned Parenthood Association v. Matheson (1983), that blocked Utah's attempts, anti-choice legislators are trying similar tactics again. 

Last year, the Texas legislature passed Rider 14 which provides that "no state [family planning] funds may be used to dispense prescription drugs to minors without parental consent." Planned Parenthood challenged the Rider in state court and won an injunction at the trial level. The Texas Supreme Court, however, subsequently dismissed the case on the ground that it was premature for litigation. The state had represented at trial that it could administer its family planning program so as to implement Rider 14's restriction on state funds while continuing to use federal funds to provide prescription contraceptives to Texas minors without parental involvement. The state supreme court decision rests on its intention to allow the state to proceed with its attempt to reallocate funds without undermining teenagers' access to confidential contraceptive services.

This year, anti-choice legislators in at least seven states have introduced bills that would mandate parental involvement in minors' access to contraception: Alaska, Florida, Georgia, Idaho, Kentucky, Maryland, and South Carolina. Many of these are broad "parental rights" bills that would require parental involvement in a range of health care decisions that minors have traditionally been permitted to make independently, including decisions about contraception, testing and treatment for sexually transmitted disease, and counseling for drug and alcohol abuse. But proposals threatening minors' confidential access to contraception can take other forms as well. As they did in Texas last year, anti-choice legislators may specifically target family planning services, either imposing restrictions on the use of government funds or on all provision of contraceptives. 

ACTION NEEDED: Contact your federal legislators and urge them to vote against Rep. Manzullo's bill (H.R. 3230), Rep. Brady's bill (H.R. 2941), and any similar measures. If such legislation is being considered in your state, contact your state legislators and governor and tell them why they should oppose the bills. One of the largest and most powerful anti-choice organizations, Focus on the Family, has made the enactment of such bills one of its top priorities. So, unfortunately, we can expect to see many more of these proposals in the future. 

MODEL LETTER Dear [federal or state legislator]: As your constituent, I urge you to oppose [H.R. 3230 and H.R. 2941, or a state bill] and any other attempts to require parental consent or notification when minors seek contraceptives. Both public health policy and the law support confidentiality for teenagers seeking reproductive health care.  The American Medical Association, the American Academy of Pediatrics, the American College of Physicians, and the American Public Health Association all recommend guaranteeing confidentiality to adolescent patients. These medical experts know that when teenagers' privacy is protected, they are more likely to address sensitive medical needs. A guarantee of confidentiality increases the likelihood that teenagers will obtain contraceptives and condoms to protect themselves from unwanted pregnancy and sexually transmitted diseases, including AIDS.  Moreover, the Constitution guarantees a right to privacy in reproductive decisions, which extends to minors as well as to adults. The courts have recognized that the health interests of teenagers are best served by protecting their confidential access to contraceptives.  Although we should encourage teens to involve their parents in their health care, this involvement should never be coerced. Attempting to coerce it would only scare teens away from obtaining any form of reproductive health care, and that would be disastrous for their safety and well-being. [Your name and address]

The Anti-Choice Plan of Attack

The U.S. has traditionally been one of the biggest contributors to international family planning assistance, and a recent poll showed that 74% of Americans continue to support this form of aid. They recognize that it fosters better health, education, and living standards for families in developing countries. But now, anti-choice members of Congress are trying -- as they have done in the past -- to dismantle international family planning assistance. 

Their strategy once again is to mire family planning assistance in controversies about abortion. It has long been illegal to use U.S. funds to perform or promote abortion overseas. Now, certain members of Congress want to deny U.S. family planning assistance to international family planning organizations that disagree with their anti-choice agenda. 

The "Global Gag Rule"

Creating an abortion issue where none really exists, Rep. Christopher H. Smith (R-NJ) and his allies have revived an old ploy: the "global gag rule." A version of this policy was in effect during the Reagan and Bush Administrations until President Clinton ended it by executive order when he came into office in 1993. The global gag rule would prohibit foreign family planning organizations from receiving much-needed U.S. family planning funds if they -- even with their own private funds -- perform legal abortions or attempt in any way to influence the laws or policies of their own countries, pro or con, regarding abortion. Under this rule, overseas family planning providers would become ineligible for U.S. aid if they, for instance, held privately funded conferences or workshops or distributed publications in any way critical of their countries' abortion policies. 

Rep. Smith has succeeded in attaching the gag rule to the Foreign Affairs Reform Act conference report (H.R. 1757), a sweeping bill that includes a number of important foreign affairs initiatives, including payment of U.S. dues to the United Nations. The language in the bill provides for a waiver, but one that comes at an unacceptably high price. President Clinton may waive the ban on the provision of U.S. family planning funds to organizations that use their own private funds to perform abortions, but only if he agrees to a staggering $44 million cut in overall U.S. funding for family planning assistance. The bill would not allow the President to waive the so-called "lobbying" ban. All of these restrictions would be written into permanent statutory law. 

While the sponsors of the global gag rule claim to be motivated by their opposition to abortion, their proposal would, in fact, increase the number of abortions in developing nations. If enacted, this measure would cut off access to family planning for millions of women abroad. Research studies have shown again and again that lack of access to family planning services increases the rates of unintended pregnancy and abortion. The global gag rule would subject already impoverished and struggling women to even greater hardship and health risks. 

In another ironic twist, the global gag rule would subvert our broader foreign policy goals that its sponsors supposedly favor: namely, the promotion of democracy and political participation in developing nations. Abortion policy remains a contentious issue around the world, with an estimated 20 million unsafe abortions -- resulting in approximately 80,000 abortion-related deaths -- occurring each year, primarily in countries where the procedure is still criminalized. Yet the gag rule would silence family planning providers -- some of the most effective advocates for women's and families' health -- about this ongoing public health crisis. Secretary of State Madeleine K. Albright has said that the global gag rule "would punish an organization for engaging in the democratic process in foreign countries and for engaging in legal activities that would be protected by the First Amendment if ca