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Copyright 2000 The Washington Post  
The Washington Post

December 15, 2000, Friday, Final Edition


LENGTH: 1008 words

HEADLINE: EEOC Rules on Birth Control

BYLINE: Sarah Schafer , Washington Post Staff Writer


Employers must cover contraceptives in their health insurance plans if they also help pay for a wide range of other products and services designed to prevent illness or enhance general well-being, the U.S. Equal Employment Opportunity Commission has ruled in two cases that could set a national precedent.

The EEOC decision, released late Wednesday night, sets the stage for a possible flood of legal action brought by workers because it advises employers that they would be violating federal anti-discrimination law if they provide health coverage for things such as blood-pressure medication and impotency treatment but deny coverage for birth-control pills, diaphragms and other prescription contraceptives.

These types of EEOC advisories do not carry the same weight as agency rulings or court rulings but provide guidance for companies and courts wrestling with issues with few or no legal precedents, said Ellen Vargyas, an EEOC lawyer who worked on this case. Ultimately, however, the courts will decide whether to accept the agency's interpretation of the law. The EEOC was responding to two complaints filed by women who claimed their employers discriminated against them because their health plans did not help pay for contraceptives. The advisory could affect millions of workers, primarily women, and it has reignited a controversy that has been brewing at the local and state levels between some religious groups and legislators.

"We hope that as employers are put on notice by the EEOC of their legal obligation to cover contraceptives in their health plans . . . that employers will comply," said Judy Appelbaum, a vice president for the National Women's Law Center in Washington. She said the decision "means many, many more women will have insurance coverage for this very basic health care."

Judie Brown, president of the antiabortion education group American Life League in Stafford, said she was "appalled" at the decision. Brown, whose organization opposes contraception, said, "I just absolutely do not believe that any company in the United States of America should be in the position of having to pay for birth control because females don't want to accept responsibility for the possibility of being with child after they have sexual relations."

In the two complaints--the details of which are confidential--filed with the EEOC, the employers responded that their health plans covered only "abnormal conditions."

The commission disagreed, noting that the plans covered weight-loss drugs, dental procedures and the impotency drug Viagra, Vargyas said, adding that the introduction of Viagra in 1998 marked the beginning of a national outcry over alleged unfair treatment in health benefits.

For decades, many women's groups have called on more health insurers to provide contraception coverage, arguing that it is a fundamental health issue. When Viagra reached the market, many employers immediately added it to their health plans, sometimes without requiring a diagnosis of impotency. Many women felt that it was unfair of employers to cover a product for impotency in men and not to cover prescription contraception.

"Viagra is the reason that this [issue] came into the public domain," Vargyas said. "That's when women really started to wake up and scratch their heads and say, 'What is going on here?' "

Vargyas called the matter an issue of sex discrimination because the federal Pregnancy Discrimination Act requires equal treatment of women affected by pregnancy or related medical conditions.

According to the Kaiser Family Foundation, 34 percent of women in the United States use prescription contraceptives. Kaiser estimates that a majority of health maintenance organizations cover the products--80 percent cover birth-control pills--and about half of other types of health plans cover contraceptives.

National and local lawmakers have struggled with the issue of health coverage for contraceptives, a concept that many religious organizations oppose. Last summer, the D.C. Council passed legislation mandating that all District employers provide health coverage for contraception. Mayor Anthony A. Williams (D) would not sign the law after it received bitter opposition from the Catholic Archdiocese, among others, which claimed that religious organizations should be exempt. That bill has not resurfaced.

Some members of Congress have tried to pass a law requiring private health plans to cover contraceptives. Sen. Harry M. Reid (D-Nev.) sponsored such a bill, which has never made it out of committee. A narrow version of it requiring federal employees' health plans to cover prescription contraceptives has been passed.

A spokesman for Reid said the senator will try to get his bill reintroduced in light of the EEOC's decision.

"This ruling is a significant victory for women in America who are unable to get health coverage of critical contraceptive care. I have always said that it is unconscionable that a man can get covered for a prescription like Viagra and women can't get coverage for their most fundamental health care needs," Reid said in a statement released yesterday.

Others also were encouraged by the news, including a woman in Seattle who became the first to sue her employer for sex discrimination because its health plan did not cover contraception. Her attorney, Roberta Riley, said the EEOC decision could boost her client's chances.

"Clearly we're very pleased that the EEOC agrees with our position, which is that this is sex discrimination," Riley said. "It's wonderful news for American women."

Brown said her group will not accept the decision as final.

"I think that this is a warning to us all that we had better motivate every single state and local pro-life group," she said, adding that she hopes to put pressure on President-elect Bush to oppose any far-reaching mandate by a federal agency.

The two women who filed the claims with the EEOC will now attempt to resolve their disputes with their employers, Vargyas said.

LOAD-DATE: December 15, 2000

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