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Copyright 2000 Globe Newspaper Company  
The Boston Globe

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July 27, 2000, Thursday ,THIRD EDITION


LENGTH: 740 words


BYLINE: By Ellen Goodman, Globe Staff

   By any standard, Jennifer Erickson is a Planned Parenthood poster plaintiff: She's 26. She's married. She's preparental. She's even a pharmacist, for heaven's sake.

Erickson was the one behind the counter at Bartell Drug telling customers that their insurance plan covered nearly every pill except the one known far and wide as the pill. So it's not surprising that the Seattle woman spoke up when she realized that her own company's insurance plan left her in the lurch. She, too, was spending more than $300 a year for contraceptives.

   Hers is, in some ways, an old story. Women have been paying for contraceptives ever since the first diaphragm was smuggled into America.

But a few years ago, when insurance plans began picking up the tab for Viagra, the lightbulb went on over the medicine cabinet. How come employee health care plans covered pro and not contraception? Some of us thought it was time to redefine the Pill as a female impotence drug. What greater turnoff, after all, than the fear of pregnancy?

In any case, some 13 state legislatures have now mandated that private insurance plans that pay for prescription drugs must also pay for contraceptives. But only half of insurance plans cover any of the five contraceptives for women - from pills to Norplant - and the issue has been stalled in Congress.

Now Erickson has filed the first class action suit of its kind, citing Title VII of the Civil Rights Act to win contraceptive coverage for women at Bartell. When men get their basic health care covered and women don't, the suit charges, it's employment discrimination.

Employers have long maintained that contraceptives aren't covered because they aren't "medically necessary." Many have described pills and diaphragms as a "lifestyle choice" on par with Retin-A or cosmetic surgery or - as one California legislator put it - "hairspray."

But this time they'll be girding their lawyers to defend against sex discrimination charges. And be prepared for some gender-bending arguments.

One of the arguments already being aired rests on the notion that as long as the same policy is applied the same way to both men and women, there's no illegal bias. Companies may well claim they aren't discriminating against women but against contraceptives. Why, they don't pay for the pill for men either! Of course, all five methods of prescription contraceptives are for women. So this is like saying that women are equally covered for prostate exams and men for pap smears.

There is a history to this sort of "equality." Some 25 years ago, health insurance plans excluded vaginal deliveries. The Supreme Court actually ruled that denying insurance for pregnancy was not sex discrimination. The employer merely had two categories of workers: pregnant and nonpregnant persons.

The tortured absurdity of this ruling led Congress to pass the Pregnancy Discrimination Act. This banned sex discrimination on the basis of "pregnancy, childbirth or related medical conditions" in all employment areas, including benefits.

Fertility is, um, a preexisting condition for a huge number of working women. And the need for contraception is nothing if not a "related medical condition."

A policy that covers the cost of basic health care for men but makes women pay for contraceptives discriminates quite simply because it has a disparate impact - on the woman and her pocketbook. Women are the ones who get pregnant. Without contraceptive coverage, women end up paying 68 percent more of their own money for health care.

Ironically, the cost of adding this coverage would be $22 a year. Yet more insurance companies pay for abortion than contraception. Indeed, more pay for sterilization than contraception.

Gloria Feldt, the president of Planned Parenthood, says that employers have counted on the fact that "women want contraceptives so badly, they'll pay anything. And they do."

But there is something larger at stake in this discrimination suit. As Feldt says: "Men's health and bodies have always been the norm in designing health plans. Women's have been the abnorm." What if women were the norm? Would contraception still be considered medically unnecessary?

This is one area in which anatomy is destiny. We can't treat insurance coverage the same any more than we can treat bodies the same. Until - let us pray - a male contraceptive pill comes on the market, separate is the only way to get equal.


LOAD-DATE: July 27, 2000

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