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Columbia Law School




This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, which often conflict with employees’ interests. Employers tend to be antinatalist because childbearing, birthing, and rearing are costly to them both as employers and insurers. Even ostensibly pronatalist employers who object to covering contraception and abortion, upon closer examination, likewise have economically self-interested motivations. The legal infrastructure validating employers’ choices subordinates individuals’ interests in reproductive autonomy to their employer’s economic interests.

Decoupling health care access from employers thus is necessary to bolster reproductive autonomy. But the most effective means of decoupling – public-option or single-payer public benefits – prompt some tough questions about reproductive exceptionalism. Shifting the third-party payment role from employers to governments does not truly remove the threat to reproductive autonomy in these funding decisions, so progressive health reform risks sacrificing reproductive autonomy to the cause of universal benefits. Confronting these tough questions illuminates ways that vigilantly centering reproductive autonomy in single-payer reforms can make those efforts both more feasible and more durable.


Article forthcoming

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