Copyright 2000 / Los Angeles Times
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July 20, 2000, Thursday, Home Edition
SECTION: Part A; Part 1; Page 16; National Desk
LENGTH: 1419 words
EXCLUSION OF CONTRACEPTIVE COVERAGE BRINGS BIAS SUIT;
INSURANCE: PLANNED PARENTHOOD, IN A NEW FIGHT OVER WOMEN'S HEALTH ISSUES,
ALLEGES DRUGSTORE CHAIN PRACTICES SEX DISCRIMINATION.
BYLINE: ALISSA J. RUBIN, TIMES STAFF WRITER
Planned Parenthood on Wednesday filed a
lawsuit against a Washington drugstore chain, arguing that employers whose
insurance plans exclude contraceptives but cover other prescription drugs are in
effect practicing sex discrimination.
The lawsuit, filed in federal
district court in Seattle, signals a new front in what is becoming a
battleground over women's health issues in state legislatures and on Capitol
Hill. In the District of Columbia, the City Council is in a heated fight over
whether such coverage should be mandatory. Similar legislation has stalled in
the Massachusetts Legislature. And Iowa recently passed a law requiring
insurance companies to provide birth control coverage.
however, a bipartisan bill that would require all insurers and health plans to
cover contraceptives, if they cover other prescription drugs, has been stalled
for nearly four years.
Planned Parenthood officials are hoping that the
Seattle lawsuit, brought on behalf of female workers at Bartell Drug Co., which
describes itself as the nation's oldest drugstore chain, will bring national
attention to the issue and also push individual employers to cover
"This is a fundamental gender inequity in health care,"
said Gloria Feldt, president of Planned Parenthood of America. "It is
discrimination when male employees get their basic health care needs covered by
insurance but women are forced to pay for theirs."
The lead plaintiff in
the case, Jennifer Erickson, a 26-year-old pharmacist, is married and says that
she would like to have children. But she wants to wait until she and her husband
think they are ready. "As a pharmacist, I see firsthand that contraceptives are
central to women's health care," Erickson said.
Chain Defends Insurance
In a statement, Bartell Drug, which has about 1,350 employees,
defended its policy. "We provide a comprehensive health insurance plan at no
cost to our employees," said Jean Bartell Barber, the chief financial officer.
"No medical benefit program covers every possible cost. . . . We do not cover
prescriptions for Viagra, infertility drugs, drugs for weight reduction,
immunization agents . . . and other items."
Legislative efforts to
provide such coverage have met with resistance, as two powerful forces--business
interests and the Roman Catholic Church--have sought to block contraceptive
The lawsuit is being brought under Title VII of
the U.S. Civil Rights Act, which prohibits employment discrimination on the
basis of race and sex. It is the first time that lawyers have attempted to use
Title VII to win contraceptive coverage for women.
The immediate effect
of any ruling in the lawsuit may be limited because under Title VII claims can
be brought only against an individual employer.
But if Planned
Parenthood prevails, the case could set a significant precedent, according to
some attorneys and health care experts. A provision of Title VII allows for
reimbursement of attorney fees if their lawsuit is successful, and that might
prompt other attorneys to use the same legal grounds in suits against other
"Depending on the outcome, it's likely to put much more
pressure on an issue that's stalled at the federal level and is moving very
slowly through the states," said Alina Salganicoff, director for women's health
policy at the nonpartisan Kaiser Family Foundation, a Palo Alto-based health
care research organization.
Discriminatory Factor Called Key
Thirteen states, including California, mandate coverage of prescription
contraceptives for state-regulated insurance plans, according to a recent survey
by the Alan Guttmacher Institute, a New York-based research group that focuses
on reproductive health. Those regulations do not apply to 56 million workers
covered by insurance plans not regulated by states.
Sylvia Law, a
professor at New York University Law School and a Title VII expert, said that
for the case to be successful Planned Parenthood would have to demonstrate that
failure to cover contraception is discriminatory. Then the employer would have
the chance to argue that there are reasons for the policy besides
discrimination. Employers typically have argued that, since they pay the lion's
share of the cost of health care coverage, they have the right to decide which
services are covered.
However, in this case, Law said, the argument
could be difficult for the employer to prove. "The reality is that prescription
contraceptives are all methods used by women, and so it's de facto gender
Typically, insurers cover vasectomy, one of the more
common male methods of contraception.
A second point, Law said, is that
only women are physically subject to the consequence of not using contraception:
pregnancy. It is the woman who must either carry the child to term or have an
abortion, both of which involve health risks.
Viagra Issue Spurs Action
For years the lack of contraceptive coverage in many health plans was
largely overlooked. But three years ago, when some insurers sought to cover the
impotence drug Viagra, which is intended for use by men, many women and
public-health advocates were outraged and began to fight for contraception
That lent energy to efforts in state legislatures and in
Congress to require coverage of prescription birth control, such as "the pill,"
by all health plans that cover other prescription drugs but exclude
Such exclusions are not uncommon.
birth control pills, the most popular method of reversible birth control, are
covered by only one-third of fee-for-service insurance plans and 40% of
preferred provider organizations, according to a national survey by the Kaiser
Family Foundation. Birth control pills cost about $ 350 a year. Other methods,
such as the diaphragm, are even more rarely covered by insurance.
whole point here is . . . to have coverage of contraceptives become a normal
part of health care coverage, just like pregnancy and childbirth," said Susan
Cohen, a lawyer and analyst for the Guttmacher Institute.
groups have tended to resist any mandates on their health care coverage,
complaining that they add to the already high cost of health insurance. The cost
of adding full contraceptive coverage to an insurance plan would run about $ 22
a year per enrollee, according to a 1998 actuarial study commissioned by
"Employers should be able to determine that mix of benefits
as appropriate to their worker population," said Kate Sullivan, director of
health care policy at the U.S. Chamber of Commerce.
"The plans that
don't cover contraceptives tend to be those that only cover things that are
medically necessary," Sullivan said. "So they cover a minimum of preventive care
and they would not cover lifestyle drugs, like Retin A or hair growth drugs. Not
that I'm putting contraceptives in the same category, but those plans only cover
drugs that are medically necessary."
The National Conference of Catholic
Bishops opposes any mandate on contraceptive coverage unless it includes an
exemption for all Catholic employers, such as Catholic hospitals, schools,
universities and social service organizations.
"We have been seeking a
conscience clause in the arena of mandatory contraceptive coverage that protects
religious employers--whoever would be asked to take actions contrary to their
consciences," said Helen Alvare, a spokeswoman for the National Conference of
The only acceptable birth control, in the bishops'
view, is natural family planning, in which couples time their sexual relations
to try to ensure that the woman is less likely to become pregnant.
anti-abortion groups also take a strong stand against birth control but make a
distinction between so-called barrier methods of contraception, such as the
diaphragm and the condom, which they view as permissible, and birth control
pills; injectable contraceptives, such as DepoProvera; and the IUD--which they
argue can stop a fertilized egg from implanting and thus are a type of abortion.
But the issue has galvanized reproductive health groups that, accustomed
to defending rights to abortion, now have a somewhat less controversial cause to
embrace. And in polls, a clear majority of Americans support contraceptive
coverage even when it adds to the cost of their health insurance.
Times staff writer Jacqueline Newmyer contributed to
LOAD-DATE: July 20, 2000