Prescription Insurance Coverage of Contraceptives

Background

This issue pertains to mandating insurance companies to provide coverage for contraceptives. The lobbying effort around this issue in the 106th Congress can be seen spanning the domain from federal employees' health plans to more comprehensive healthcare reform.

At the time of the initiation of the lobbying effort, most health plans typically did not cover all of the five reversible contraceptive methods available to women by prescription: oral contraceptive pills, the intrauterine device, the diaphragm, Norplant and Depo Provera. An estimated half of traditional indemnity plans and preferred provider organizations, 20 percent of point-of-service networks, and 7 percent of health maintenance organizations covered no contraceptive methods other than sterilization. Fewer than 20% of traditional indemnity plans and preferred provider organizations and fewer than 40% of point of service networks or health maintenance organizations (HMOs) routinely allowed women a choice between these five contraceptive methods. About a third covered the pill which costs about a dollar a day, 39 percent covered all five methods, and 7 percent did not cover the pill (some figures can be accessed at http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/Planned_Parenthood/Planned_Parenthood_The_Equity_in_Prescription_Insurance_and_Contraceptive_Coverage_Act.htm, and at http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/NARAL/NARAL_Private_Insurance_Coverge_For_Contraception_Improves_the_Health_of_Women.htm). In general, prescription drug coverage has usually not included coverage for oral contraceptives, the most commonly used reversible contraceptive method in the United States. Where contraceptives are included, it is common to find limitations on the type of contraceptives covered. The issue, then, remains not just one of fixed price coverage but of options too.

The connection between the specificity of legislation and the broader issue that subtends it is evident in the series of related bills presented to Congress. The curtain-raiser was the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) of 1997 brought to the 105th Congress as H.R. 2174 and S. 766 by Representatives James Greenwood (R-PA) and Nita Lowey (D-NY), and Senators Olympia Snowe (R-ME) and Harry Reid (D-NV) respectively. EPICC sought to mandate health plans and insurance providers on the individual as well as group level to include contraceptives in the prescription coverage they offer. Another front where this issue was pursued was the area of federal employees' healthcare benefits. While a rough road was expected for EPICC, the effort to obtain coverage under the Federal Employees Health Benefits Plan (FEHBP) was deemed an easier one to bear fruit, in order also to set a favorable precedent for EPICC. Proponents saw the coverage for federal employees as a rehearsal and as a stepping stone toward the struggle for broader healthcare reform.

Lobbyists opted to attach this specific and narrower version of the legislation to the Treasury and Postal Service Appropriations Bill. The appropriations bill did pass, amending the FEHBP to provide contraceptive coverage for participating individuals. It was signed into law by President Clinton in September 1999 as as part of the FY 1999 Omnibus Supplemental Appropriations Act, H.R. 4328, PL 105-277. Contraceptive coverage for federal employees was renewed for FY 2000 and FY 2001.

Both the proponents and the opponents of contraceptive coverage considered this a significant victory for supporters of coverage, boosting the campaign waged by both sides. In the 106th Congress, the Comprehensive Managed Health Care Reform Act of 1999 was brought to the floor in March of the same year, including language requiring managed care organizations to cover "preventive services," a term that would become critical in the final episodes of the advocacy effort, and stipulating that benefits for prescription contraceptive drugs and devices as well as outpatient contraceptive services would not be restricted.

This broader piece of legislation was channeled into a more pointed bill when the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) was reintroduced to Congress in 1999. This proposal was presented to the House in June 1999 (H.R. 2120) and again in July 1999 (H.R. 2624), followed up by similar legislative proposals in the Senate (S. 1200 and S. 1400). These bills sought amendments to the Employee Retirement Income Security Act of 1974 (popularly known as ERISA) as well as the Public Health Service Act, in order to extend contraceptive coverage to federal employees as well as the general public, and to include group plans as well as individuals within its purview. The operative term in these more focused pieces of proposed legislation was "equity" since the bill specifically required equitable coverage of prescription contraceptive drugs and services, and contraceptive services under health plans. It should be added here that this framing of the issue in terms of equity derived in large part from insurers' decision to cover Viagra-the anti-impotence pill.

Whether an equity argument or one that capitalizes on the scope of "preventive care" to mandate prescription coverage plans to include contraceptives within preventive care medicines, the heightened activity on this issue on behalf of the advocates was spurred on by the abundance of anti-choice votes brought to Congress after Republicans gained a majority in the 1994 elections. The pro-choice groups felt the need to be more proactive on critical issues in response to the perpetual activity on part of the opposition to erode the foundations laid by Roe v. Wade and subsequent victories.

Around the same time as the EPICC bills were presented to Congress, more than half a dozen state legislatures had already acted on their versions of "contraceptive equity" bills, requiring carriers which cover prescription drugs to pay for women's contraceptives as well. Around thirty legislatures in all were dealing with the issue contemporaneous with the lobbying effort at the federal level at that time. By June 2000, twelve states had enacted contraceptive equity laws. By June 2002, the number of states requiring insurers and employers to provide contraceptive coverage had increased to twenty, with a couple more effecting it in 2003.

The EPICC bills were not passed in the 106th Congress, and remain the subject of intense debate and contention at the writing of this overview, despite being introduced and fought over for several years in a row.

However, outside of the legislature, in what can be termed a productive closure of sorts to the lobbying effort within the time-span of the 106th Congress, the Equal Employment Opportunity Commission (EEOC) ruled, in December 2000, in favor of two nurses who charged their employers with violating the law against sex discrimination by failing to cover contraceptive prescriptions along with other prescriptions. This ruling was considered only a partial victory for equity in women's healthcare, and laid precedence for court battles on gender equity in health care, since federal law still does not guarantee full equity in contraceptive coverage. It did mean, however, that women who have been paying for birth-control pills out of their own pockets may have a claim for insurance coverage. The Commission upheld that it was discriminatory to exclude contraception when employers offered insurance coverage for such preventive health care as vaccinations, drugs to lower blood pressure or cholesterol, weight-loss drugs, routine physical exams and laboratory tests. The Federal Pregnancy Discrimination Act, which forbids workplace discrimination against women because of pregnancy, childbirth or related conditions, was cited as a guide to employers on issues of prescription drug coverage in the case of contraceptives-if pregnancy is a medical condition, as the Act states, then contraception is a means to prevent and to control the timing of the condition.

Another legal battle was begun in August 2000 when a Seattle pharmacist, with the support of Planned Parenthood (the key political arm of the pro-choice movement) sued her employer, a local drug company, on behalf of all non-union female employees, for discriminating against them by not covering prescription contraceptives in its health insurance plan. This class-action law suit, brought under Title VII of the Civil Rights Act, was the first of its kind seeking to force a healthcare plan to cover contraceptives. In June 2001, a point on the issue timeline beyond the scope of our research, a federal district court in the state of Washington ruled in favor of the plaintiff. The decision was appealed.

Participants

The major organizational proponents of the legislation are the National Abortion and Reproductive Rights Action League (NARAL) and the Planned Parenthood Federation of America. Senators Olympia J. Snowe (R-ME) and Harry Reid (D-NV) together sponsored EPICC in the Senate, while Representatives James Greenwood (R-PA) and Nita Lowey (D-NY) brought the bill to the House. Representative Greenwood, known to be the pro-choice Republican in the House, led many moderate Republicans who were willing to join hands with the Democrats and women's groups to ensure and expand contraceptive coverage. Other supporters include Representative Rosa DeLauro (D-CN), the ACLU Reproductive Freedom Project, the Alan Guttmacher Institute, Fund for the Feminist Majority, the American Association of University Women, American College of Obstetricians and Gynaecologists, Center for Reproductive Law and Policy, National Abortion Federation who represent the providers, National Council of Jewish Women, National Family Planning and Reproductive Health Association who also represent providers, National Partnership for Women and Families and the National Women's Law Center.

Despite the Democrat and Republican movers of the legislation in Congress, it would be an overstatement to regard the issue as truly bipartisan, for the lines of contention do map on to traditional Democrat-Republican lines, as long as the issue imports key elements of the pro-life and pro-choice debate. It should, however, be kept in mind that the struggle for contraceptive coverage is certainly part of, but does not simply mirror, the battle between pro-choice and pro-life forces, since many anti-abortionists also support contraceptive coverage as preventive of abortion.

One of the most outspoken opponents of the legislation is Representative Chris Smith (R-NJ). Other opponents include: American Life League, Christian Coalition, Focus on the Family (formerly the Family Research Council), National Conference of Catholic Bishops, National Right to Life Committee, Pro-Life Secretariat of the National Catholic Conference, Concerned Women for America and the Traditional Values Coalition.

Arguments/Impediments

The arguments made by the proponents of the legislation have four basic hinges, from which other arguments stem. Firstly, the issue of equity is atop the lists of all advocates, given that just a few weeks after Viagra hit the market, many of the same employers that exclude women's contraception from their health plans moved to provide coverage for the anti-impotence drug. This event added fresh wind to the sails of the long-standing struggle for contraceptive coverage-they were able to argue that while women have to pay for birth control out of their own pocket, male anti-impotence pills were being covered by health insurance, which seemed to them more than a little ironic. Women pay 68% more in out-of-pocket health care costs than men, with a large portion going towards reproductive health care (Women's Research and Education Institute. (1994). Women's Health Care Costs and Experiences. Washington, D.C.: WREI, accessible at http://www.plannedparenthood.org/library/BIRTHCONTROL/EPICC_facts.html).

Secondly, there is the issue of preventive healthcare, which became central to EEOC's ruling against exclusion of contraceptives from prescription insurance coverage. The Federal Pregnancy Discrimination Act, enacted as a result of efforts challenging employers' excluding pregnancy from disability coverage, comes in handy while arguing for the discrepancy in health insurance plans: while preventives like vaccines and drugs to regulate blood pressure were covered by them, they excluded contraceptives that were needed to prevent, control, time and limit the onset and effects of the medical condition pregnancy. More broadly, for proponents, contraceptive coverage is a basic health right that should be covered by prescription insurance. It is argued that private sector health insurance coverage for contraception that would encourage timing pregnancies and limit family size will generally improve the health of women and families. Also, as the American College of Obstetricians and Gynecologists stated,

"Most women can become pregnant from the time they are teenagers until they are in their late forties -- meaning a woman can become pregnant for thirty or more years. A woman cannot opt out of the need to control her fertility during the three decades prior to menopause without risking multiple pregnancies. For some women with serious medical conditions, controlling their fertility is a matter of life or death (http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/American_College_of_Obstetricians_and_Gynecologists/ACOG_S1200_Endorsement_Letter.htm)."

The third fulcrum for the proponents is an argument heeded by all but the staunchest opponents, and one which often succeeds in smudging stark partisan lines to allow cooperation in favor of contraceptive coverage, is related to abortion. Here abortion is invoked not in terms of "choice" or "life" alone, nor even in the language of rights, but as a negative thing, to be stifled, obviated and in this case, pre-empted. The proponents argue that the United States has one of the highest abortion rates among industrialized nations and this is deplorable to both the abortion rights and the anti-abortion movements. They claim, in the words of an advocate, that "access to contraception and contraceptive services has been proven to reduce the number of unwanted pregnancies which in turn reduces the number of abortions in this country." In an effort to shift the terms of the debate away from the conventional abortion rhetoric to a more positive agenda, the proponents feel that contraceptive coverage is a "proactive step to reduce the number of abortions, because everyone can agree that in general, abortion is a bad thing with a whole lot of negative consequences and implications," even though the specificities of these negatives cited by the conventional parties may differ.

The economic argument in favor of contraceptive coverage is not far behind. Primarily, the comparison is drawn between the cost of contraceptives versus that of abortions, post-natal and infant care in complicated pregnancies given that "one of the highest expense procedures of any in this country is caring for a sick baby after a difficult birth." Then there is the burden of childcare, with the implication that it may be more feasible for couples to plan the number and spacing of pregnancies, which is not possible without adequate access to contraception. (An advocate we interviewed felt that it is more useful to think about family planning in terms of "the burden of caretaking" rather than proceed through economic or equity arguments). One advocate estimated that the coverage would only cost three dollars per person per month. A June 1998 Alan Guttmacher Institute Report, "Cost to Employer Health Plans of Covering Contraceptives" (cited by the American College of Obstetricians and Gynaecologists in a letter to the EEOC) estimated that

The opponents also invoke the notion of who will bear the costs of coverage-and it is common to hear the argument that the cost of such mandates and "extra frills on health insurance" is borne disproportionately by workers. The proponents respond by saying that the focus is not merely on mandating the employers to do what they are not, but to guide them to make more sensible, logical and consistent decisions about what prescriptions they should cover (for instance, plans that cover sterilization and abortions but not cover contraceptives that may obviate the very need for these costly procedures)-which in turn may make the private healthcare market as well as the employers themselves function more efficiently.

The opposition to the bill often relies on the notion of "conscience clauses." This is a version of the mandate argument, but from a religious and moral point of view. It basically amounts to giving corporate entities the right to a moral objection. The opponents of the bill argue, for instance, that Catholic hospitals and health plans cannot, in pursuance of the Catholic doctrine, be mandated to provide abortion services, fertility treatments, sterilization, emergency contraception and family planning other than natural family-planning. This argument takes the notion of individual opt-out to the level of service providers and insurers, not willing to force a Catholic plan to have to cover something that is against its religious tenets.

There are some opponents of the legislation who are not opposed to contraception as such but emphasize the other "bargain" forms of contraception such as condoms, dismissing the need for mandating the other contraceptive methods when they can be left as electives, like many other prescription services, and chosen by those who desire them (and can pay for them). The opponents here stress that there was no need to expand the slate of contraceptive options available to women for many plans do already cover one form of contraceptive. Some direct their disfavor at the newer contraceptive technology such as "emergency contraception" or the "morning-after pill" that "destroy[s] a developing embryo," and at all the " 'mainstream' abortifacient drugs" used as contraceptives (United States Conference of Catholic Bishops, accessible at http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/NCCB_USCC/NCCB-USCC_Contraceptive_Coverage_Mandate.htm, and http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/NCCB_USCC/NCCB-USCC_Life_Issues_Forum_Force_Choice.htm).

Therefore, those Republicans who were able to, in considerable numbers, come out in support of the bill chose a more contemplative and nuanced understanding of the issue at hand than would have been consistent with the norm set by the more abiding pro-life Republicans. This was appreciatively pointed out by one of the key advocates interviewed.

Venues

The central site for the lobbying effort and debate on the legislation through all the years that it has been introduced has been Congress. The various committees that have participated include the House Education and Workforce Committee, the House Commerce Committee, and the sub-committees on Employer-Employee Relations and on Health and Environment. The House Appropriations Committee (especially the Treasury/Postal Subcommittee) and Senate Appropriations Committee (especially the Treasury/Postal Subcommittee) were major venues for the amendment to the Treasury-Postal appropriations bill, which provided coverage for federal employees and set the precedent for the EPICC.

Advocacy Activities and Tactics

The Snowe-Greenwood Coalition, as it came to be known in Congress, has been active for many years in bringing the contraceptive coverage proposals to the floor. In large part, the legislative efforts have been piecemeal but consistent, often symbiotic with, as well as overtaken in productivity by, state-level efforts, which are beyond the scope of this overview. The cumulative efforts in Congress, in the courts and in the state legislatures have meant that half of U.S. women now live in states requiring at least some birth control coverage, according to Planned Parenthood figures.

The bulk of advocacy activities on this issue have been characterized by an ongoing effort to lobby individual members of Congress who could be persuaded, as well as to continue grassroots, community-level work on the outside in order to legitimize and bolster the efforts inside that have so far proven to be most pervious to outside pressure. Both proponent and opponent organizations have sent letters and fact sheets to members of the House and Senate, targeting those committee members who could possibly be persuaded and also checking on and reaffirming the consistent support of those already in favor.

Members of Congress and their staff who support the contraceptive coverage proposal have used polling data collected from member's districts to demonstrate how constituents feel about the issue. In addition, they have given information to columnists for editorials, and they have contacted the staff of members who are not usual pro-choice supporters, but who supported the FEHBP amendment, as well as moderate Republicans.

It is not a surprise that the Internet has been a very useful and common tool on each side. Elaborate reports are available around this issue and various others, and there is a plethora of links on organizational websites to facilitate direct action and involvement. Advocates on both sides have reached out to their communities in a very disciplined, organized and simplified way, with few blanks to be filled when it comes to "taking action." Language like "six steps you can take to improve access to contraception" is common, as is a more general emphasis on the importance of acting on the issue (http://lobby.la.psu.edu/013_Contraceptive_Coverage/organizational_statements/Center_for_Reproductive_Law_and_Policy/CRLP_Six_Steps_You_Can_Take_to_Improve_Access.htm).