Beatrix Hoffman

On March 6, 2017, Republicans in Congress finally released the first phase of their plan to “repeal and replace” the Affordable Care Act (ACA), also known as Obamacare. Their “American Health Care Act” (AHCA) embodies many familiar conservative goals, including cutting taxes on the wealthy, devolving Medicaid to the states, enhancing “free market” programs like Health Savings Accounts, and ending the individual mandate to buy insurance. In addition, House Speaker Paul Ryan has made it clear since last November that Republicans would use the “repeal and replace” process to target Planned Parenthood. The bill ends federal Medicaid funding for one year for any nonprofit health facility that provides abortions.

We should not be too surprised that a “health care” bill includes an attack on access to reproductive services. The peculiar American way of health politics has long been entwined with issues of gender, reproduction, and sexuality.

Unlike virtually all other “developed” nations, the United States has never practiced universalism—the notion that the benefits of health care and coverage should be available equally to everyone. The U.S. has always done the opposite: dividing the population into different groups that receive different levels of access to care and coverage, or none at all. It’s not just that there are tens of millions without any insurance, something inconceivable in countries with national health systems. Even Americans with access to coverage are divided into numerous categories, depending on where they work, where they live, their age, their income, their immigration status, their health condition—and, until the Affordable Care Act, whether they are male or female.

Let’s look back to the world of health insurance before the ACA, when “being a woman was a preexisting condition.” In 2010, only 14 states banned “gender rating” (charging women more than men) in the individual health insurance market. A study by the National Women’s Law Foundation found that in the remaining states, 92% of the bestselling plans in the individual market engaged in gender rating, with companies charging women between 10% and 85% more for the same health plan. And this was without maternity coverage: only 3% of these plans offered any coverage for prenatal care and childbirth. Gender discrimination also took place in the group market, where insurance companies charged more for covering workplaces with higher percentages of female employees.

This discrimination was not based in actuarial calculations, but in the insurance industry’s long-held conviction that women were bad risks. Over a century ago, in 1912, the influential insurance executive Frederick L. Hoffman (no relation to this author!) advised the Prudential Insurance Company that women should pay more than men for life insurance, even though they had lower mortality rates, because of their tendency toward “moral hazard,” meaning that they would seek insurance knowing that they were going to need it. The same idea influenced the growing health insurance industry in the 1950s to continue rating women as high risks. At an industry conference in 1953, an insurance executive proclaimed that women saw health insurance the way his wife saw credit cards: she “spends a lot more money in department stores where she has charge accounts.” Women would also over-use their health insurance, executives said, because they liked to “meet socially every afternoon in their [doctor’s] office.” Insurers used these misogynistic allegations to justify not only charging women higher rates, but also to resist creating health insurance plans with comprehensive coverage, including maternity.

Throughout the second half of the twentieth century, labor unions and women’s rights groups had to fight to include maternity and contraceptive coverage in employer health plans. By the ‘70s, insurers no longer engaged in the eugenic fantasies of the Prudential’s Hoffman, who had argued in defending gender rating that “deferred fecundity, and even more so the artificial prevention of childbirth, is unquestionably the cause of serious physical, and possibly pathological, derangement” in women. But both childbirth and birth control were still deemed uninsurable (or insurable only via costly policy riders) due to moral hazard.

Insurers were reluctant to cover preventive services in general, but the denial of maternity and birth control coverage was particularly disadvantageous to women, inviting civil rights claims. Ending maternity exclusions in health insurance was a central demand of the Campaign to End Discrimination Against Pregnant Workers, a coalition of labor activists and feminist legal scholars whose work led to the Pregnancy Discrimination Act (PDA) of 1978. This legislative victory resulted in more widespread maternity coverage in employer group plans (but not in the individual market). Reproductive rights advocates next attempted to apply the PDA to birth control exclusions. By 2000, 28 states required health plans that covered prescription drugs to include contraceptives in that category. That same year, the Equal Opportunity Employment Commission (EEOC) ruled that excluding contraceptive drugs and devices from prescription coverage constituted “discrimination on the basis of sex and pregnancy” and was thus in violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. But—in a typical argument only possible in the exclusionary U.S. health system—another federal court determined that such exclusions were acceptable “so long as contraception used by men is also excluded.”

The refusal of universalism in U.S. health care also intensified inequalities and discrimination based on sexual orientation and marital status. Dependent health insurance coverage was a perk of marriage. This distorted the romantic, sexual, and family lives of countless people. It led to the uniquely American phenomenon of couples getting married solely or primarily “for the insurance.” Online dating profiles listed health coverage among the attributes of the ideal mate. Marriage discrimination created tragedy for LGBTQ people who were denied the right to visit their loved ones in hospitals and to participate in medical and end-of-life decisions. The inability to access dependent benefits also meant higher rates of uninsurance, underinsurance, and bankruptcy caused by medical bills. Obergefell v. Hodges (2015) was a victory not only for marriage equality, but also for extending health coverage.

While the ACA did not create a universal health care system, it did contain numerous measures to address decades of gender discrimination in insurance. In 2014, Obamacare banned gender rating in the private insurance market. Maternity care is among the preventive care benefits now required of all insurance plans. Plans are also required to cover breastfeeding equipment and support domestic violence services, and–finally–contraception, without co-payments. However, congressional conservatives (including some “Blue Dog” Democrats) made sure that abortion services were kept out of the ACA’s comprehensive benefits package. And the birth control provision was weakened by the 2014 “Hobby Lobby” decision, when the U.S. Supreme Court ruled that privately held corporations could refuse to provide the benefit on religious grounds. Even with these limitations, the ACA has increased access to effective birth control, and dramatically reduced women’s out-of-pocket spending on contraceptives.

A lesser-known but truly historic development is that the ACA was the first health legislation in U.S. history to include civil rights protections against gender bias. The provision, Section 1557, bans not only race but also sex discrimination in any health program or activity receiving federal assistance. This has led to new protections for transgender people seeking health care. The federal Office for Civil Rights has ordered hospitals to assign rooms based on patients’ self-identified gender status, and required a federally-funded mammogram program to provide screenings for transgender individuals. Patient advocacy groups have also utilized the civil rights protections in the ACA to bring complaints against insurance companies that charge extremely high co-payments for HIV drugs, resulting in a 2015 decision requiring all Florida insurers to lower the cost of HIV/AIDS medications to consumers.

Even before the start of “repeal and replace” (i.e., the Republicans’ plans to repeal ACA and replace with it their own program), the gender protections in the ACA have come under challenge. In December 2016, a Texas District Court judge granted a nationwide injunction barring the government from enforcing the ACA nondiscrimination rule “insofar as the rule prohibits discrimination on the basis of gender identity or termination of pregnancy.” This case, Franciscan v. Burwell, was brought by Catholic health care providers and some states that argued the law would force them to provide both transgender surgeries and abortions (although it clearly does not require abortion services, and no entity is required to provide services violating their “religious freedom and conscience”).

The March 2017 Republican proposal does not repeal the ACA’s minimum preventive care requirements or its civil rights protections (and cannot because it is only a budget reconciliation bill; Speaker Paul Ryan has promised that additional repeal efforts will be coming soon). But it still has major implications for gender equality and discrimination. The cut to Medicaid funding for abortion providers clearly targets Planned Parenthood, whose clientele are overwhelmingly women. Planned Parenthood provides not only reproductive care, but also a wide range of preventive medical services, including cancer screening and HIV testing. The proposed cuts to the entire Medicaid program will harm more women than men since the program is 58% female (including children).

Limiting the abortion rights and health care access of poor and minority women via the Medicaid program has a long history in the U.S. But, thanks to the ACA, the reproductive rights movement has a new tool: Section 1557, banning gender discrimination in federally-funded health services. Activist strategies could rightly emphasize the disproportionate impact of Medicaid cuts on protected groups. To make legal challenges winnable, though, will require preventing any Supreme Court appointment by the new administration.

It is also time to call out the hypocrisy of a “repeal and replace” that purports to offer “choice” while actually erasing the limited choices currently available in U.S. health care. By mobilizing to defend Planned Parenthood and Medicaid and the gains of Obamacare, the citizen uprising that derailed the “American Health Care Act” (AHCA) on March 24 is also a blow against a health system that divides us.

Beatrix Hoffmanbhoffman_jacketphoto is Professor of History at Northern Illinois University in DeKalb. She is the author of Health Care for Some: Rights and Rationing in the United States since 1930 (University of Chicago Press, 2012) and The Wages of Sickness: The Politics of Health Insurance in Progressive America (University of North Carolina Press, 2001), and coeditor of Patients as Policy Actors (Rutgers University Press, 2011). She curated a traveling and online exhibition for the National Library of Medicine entitled “For All the People: A Century of Citizen Action in Health Care Reform.” Her current project is on immigration, migration, and the right to health care.

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