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The EPICC Quest for Prescription Contraceptive Insurance Coverage

Published online by Cambridge University Press:  06 January 2021

Christine Vargas
Christine Vargas*
Affiliation:
University of Florida; Boston University School of Law
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Extract

On the October 18, 2001 episode of The Late, Late Show with Craig Kilborn, the show's host announced that a woman in Georgia had sued her employer, WalMart, for not covering her contraceptives under its health insurance plan. He then cracked, “Hey, isn't working at WalMart all the birth control you need?” Kilborn's crude joke met with howls of laughter from the audience, but it likely struck a raw nerve with the millions of American women who do not have access to health insurance plans that cover birth control, and the many men and women who are battling to ensure that all women ultimately obtain such coverage.

WalMart is one of hundreds of employers in the United States that do not cover any of the five most common forms of birth control that were created exclusively for women. In fact, half of the large health insurance plans in America do not cover any form of contraception. Some of these plans do, however, cover Viagra, a drug used to treat male impotence.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 28 , Issue 4 , December 2002 , pp. 455 - 471
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2002

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References

1 See Vicki Lankarge, Georgia Woman Sues Wal-Mart for Failing to Cover Contraceptives, at http://www.insure.com/states/ga/health/walmart1001.html (Oct. 19, 2001).

2 The Late, Late Show with Craig Kilborn (CBS television broadcast, Oct. 18, 2001)Google Scholar.

3 See Planned Parenthood's Fair Access to Contraception Project, Cover My Pills: Fair Access to Contraception, at http://www.covermypills.org (last modified Sept. 18, 2002).

4 See ALAN GUTTMACHER INSTITUTE, UNEVEN AND UNEQUAL, INSURANCE COVERAGE AND REPRODUCTIVE HEALTH SERVICES 12 (1994).

5 See Hayden, Lisa A., Gender Discrimination Within the Reproductive Health Care System: Viagra v. Birth Control, 13 J.L. & HEALTH 171, 174 (1999)Google Scholar (listing the five forms of FDA-approved birth control as: the contraceptive pill, intrauterine devices (IUD’s), Depo-provera injections, Norplant subdermal inserts and most diaphragms.); see also Bloomberg News, F.D.A. Clears Johnson & Johnson Birth Control Patch, N.Y. TIMES, Nov. 21, 2001, at C4 (reporting on FDA approval of the Ortho-Evra patch).

6 Hayden, supra note 5, at 172.

7 Id.; see also Utiger, Robert D., A Pill for Impotence, 338 NEW ENG. J. MED. 1458 (1998)CrossRefGoogle ScholarPubMed.

8 See generally Hayden, supra note 5.

9 See id.; see also Law, Sylvia A., Sex Discrimination and Insurance for Contraception, 73 WASH. L. REV. 363 (1998)Google Scholar.

10 See Center for Reproductive Law and Policy, Contraceptive Coverage for All: EPICC Act is Prescription for Women's Equality, at http://www.crlp.org/pub_fac_epicchart.html (Sept. 2002) [hereinafter CRLP]; see also MERRIAM WEBSTER's COLLEGIATE DICTIONARY 1270 (10th ed. 1993) (defining tubal ligation as “a [surgical] method of female sterilization involving the tying of the fallopian tubes “to prevent the passage of ova from the ovaries to the uterus”).

11 See CRLP, supra note 10.

12 PLANNED PARENTHOOD FEDERATION OF AMERICA, EQUITY IN PRESCRIPTION INSURANCE AND CONTRACEPTIVE COVERAGE ACT, at http://www.plannedparenthood.org/library/birthcontrol/epicc_facts.html (May 2002).

13 Id.; see also Improving Women's Health: Why Contraceptive Insurance Coverage Matters: Hearing of the Comm. on Health, Educ., Labor and Pensions, 107th Cong. 53 (2001) [hereinafter S-104 Women's Health Hearing].

14 See CRLP, supra note 10; see also discussion infra Part III.

15 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N, DECISION ON COVERAGE OF CONTRACEPTION (Dec. 14, 2000) [hereinafter EEOC DECISION] (concluding that the Pregnancy Discrimination Act's “prohibition on discrimination against women based on their ability to become pregnant … necessarily includes a prohibition on discrimination related to a woman's use of contraceptives”), available at http://www.eeoc.gov/docs/decision-contraception.html.

16 See discussion infra Part III.

17 Title VII does not apply to employers with fewer than fifteen employees. 42 U.S.C. § 2000e(b) (1999).

18 Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (2000).

19 Id. § 1144(a). See discussion infra Part III.B.

20 Equity in Prescription Insurance and Contraceptive Coverage Act of 2001, S. 104, 107th Cong. (2001) [hereinafter EPICC Act].

21 See Hayden, supra note 5, at 196-98.

22 See Mandatory Contraceptive Coverage, THE CATHOLIC ADVOCATE (Washington State Catholic Conference), Sept. 20, 1992 (urging readers to write to their Senators and ask them to oppose EPICC because it “violates the conscience rights of individuals and institutions who object on moral and religious grounds”).

23 See S-104 Women's Health Hearing, supra note 13.

24 Id.; see also Law, supra note 9, at 364 (placing the estimate of unintended pregnancies in the United States at nearly sixty percent of all pregnancies).

25 Id.

26 Id.

27 Id.; see also Law, supra note 9, at 364.

28 See MERRIAM WEBSTER's COLLEGIATE DICTIONARY 361 (10th ed. 1993) (defining dysmenorrhea as a condition marked by “painful menstruation”).

29 S-104 Women's Health Hearing, supra note 13.

30 Id.

31 See Jensen, Gail A. & Morrissey, Michael A., Employer-Sponsored Health Insurance and Mandated Benefits Laws, 77 MILBANK Q. 425, 443-447 (1999)CrossRefGoogle ScholarPubMed.

32 See Darroch, Jacqueline E., Cost to Employer Health Plans of Covering Contraceptives, Alan Guttmacher InstituteGoogle Scholar, at http://www.agi-usa.org/pubs/kaiser_0698.html (June 1998).

33 See WASHINGTON STATE NAT’L ORG. FOR WOMEN, CONTRACEPTIVE EQUITY, at http://www.wa-now.org/pp/contraceptive_equity.pdf (2000) [hereinafter CONTRACEPTIVE EQUITY] (outlining the costs associated with birth control and childbirth).

34 Id.

35 See MERRIAM WEBSTER's COLLEGIATE DICTIONARY 188 (10th ed. 1993) (defining Cesarean section deliveries as “surgical incision of the walls of the abdomen and uterus for delivery of offspring”).

36 See WASHINGTON STATE NATIONAL ORGANIZATION FOR WOMEN, CONTRACEPTIVE EQUITY at http://www.wa-now.org/pp/contraceptive_equity.pdf (visited February 10, 2002).

37 Darroch, supra note 32.

38 NAT’L WOMEN's LAW CTR., CONTRACEPTIVE COVERAGE MUST BE INCLUDED IN THE FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM (July 2001), available at http://www.nwlc.org/pdf/federalconcov.pdf. Unfortunately, President Bush is seeking to end the coverage requirement. For a case arguing against such action, see id. (discussing Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001)). For a discussion of plans exempted from the mandate, see infra Part II.B.

39 EPICC Act, supra note 20.

40 29 U.S.C. § 1001.

41 42 U.S.C. § 300gg-11 (relating to the group health insurance market); 42 U.S.C. § 300gg-41 (relating to the individual health insurance market).

42 EPICC Act, supra note 20.

43 CRLP, supra note 10.

44 See discussion infra Part III.A.

45 EPICC Act, supra note 20.

46 Id.

47 Id.

48 Id.

49 Id.

50 See discussion infra Part III.A.

51 See PLANNED PARENTHOOD OF NEW YORK CITY, INC., ISSUES AND TRENDS IN REPRODUCTIVE HEALTH: CONSCIENCE CLAUSES, at http://www.ppnyc.org/facts/facts/conscienceclauses.html (May 1999).

52 See NAT’L ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE, DENIAL CLAUSES: DANGEROUS FOR WOMEN's HEALTH (Jan. 11, 2002) [hereinafter NARAL], available at http://www.naral.org/mediaresources/fact/pdfs/clauses.pdf.

53 See PLANNED PARENTHOOD OF NEW YORK CITY, INC., supra note 51.

54 410 U.S. 113 (1973).

55 The Church Amendment was named for its sponsor, then-senator Frank Church, a Democrat from Idaho.

56 42 U.S.C. § 300a-7.

57 Id. § 300a-7(b).

58 All but Alabama, Vermont, New Hampshire, West Virginia and Mississippi passed such laws. See NARAL, supra note 52, at 5.

59 THERESA NOTARE, U. S. CONFERENCE OF CATH. BISHOPS, NO REST FROM “MISCHIEF”, Life Issues Forum, at http://www.nccbuscc.org/prolife/publicat/lifeissues/07212000.htm (July 21, 2000).

60 See NARAL, supra note 52, at 1.

61 Id. at 2; see also BLACK's LAW DICTIONARY 300 (7th ed. 1999) (defining informed consent as “a patient's knowing choice about a treatment or a procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would provide to a patient …”).

62 See NARAL, supra note 52, at 2.

63 See CATHOLICS FOR CONTRACEPTION, ACTION ALERT: SENATE COMMITTEE CONSIDERS CONTRACEPTIVE EQUITY FOR WOMEN, at http://www.cath4choice.org/contraception/new.htm (visited Feb. 10, 2002).

There is room within the legitimate interpretation of Catholic teaching for church institutions to provide contraceptive coverage based on the principle of “legitimate cooperation,” a doctrinally based position that allows Catholic institutions to cooperate with acts considered immoral if it will prevent a greater harm and they are not immediately involved in the act.

Id.; see also Hogan, Carol N., Essay, On Politics: Can the Government Define Religion?, 1 NAT’L CATH. BIOETHICS Q. 27, 29 (2001)Google Scholar (arguing that “[t]he Catholic Church does not oppose the state government's right to craft a public policy in variance with its teaching, it only asserts that its religious liberty should exempt it from that policy”).

64 See CATHOLICS FOR CONTRACEPTION, supra note 63.

65 See NARAL, supra note 52, at 3 (outlining public opposition to refusal clauses).

66 See discussion infra Part III.

67 Id.

68 See Daillard, Cynthia, State Contraceptive Coverage Laws: Creative Responses to Questions of Conscience, 2 GUTTMACHER REPT. ON PUB. POLICY 4 (1999)Google Scholar (citing a KPMG Peat Marwick finding that “almost eight in 10 employees in small firms (79%) and almost half of employees in large firms (46%) work for employers who offer only one plan”), available at http://www.agi-usa.org/pubs/journals/gr020401.html.

69 Id.

70 Id.

71 See CRLP, supra note 10.

72 MD. CODE ANN., INS. § 15-826 (2002).

73 See CRLP, supra note 10.

74 See infra notes 96-101 and accompanying text.

75 See id.

76 See PLANNED PARENTHOOD OF NEW YORK CITY, INC., supra note 51.

77 See NARAL, supra note 52.

78 CAL. HEALTH & SAFETY CODE §§ 1367.25, 10123.196 (West 2000 & Supp. 2002).

79 I.R.C. § 6033(a)(2)(A) (West 2002).

80 CONN. GEN. STAT. ANN. §§ 38a-503e, 38a-530e (West. Supp. 2002) .

81 Id. § 38a-503e(b)(2) (emphasis added).

82 DEL. CODE ANN. tit. 18, § 3559(d) (Michie Supp. 2000).

83 See MD. CODE ANN., INS. § 15-826.

84 HAW. REV. STAT. ANN. §§ 431:10A-116.6, 432:1-604.5 (Michie 2001).

85 ME. REV. STAT. ANN. tit. 24, §§ 2332-J, 2756, 2847-G, 4247 (West 2001).

86 HAW. REV. STAT. § 431:10A-116.7 (2001).

87 See Daillard, supra note 68 (noting that Hawaii is the only state to take affirmative steps to protect individual enrollees from the adverse effects of their employers’ usage of the religious exemption).

88 HAW. REV. STAT. § 431:10A-116.7.

89 MO. ANN. STAT. § 376.1199 (West 2001).

90 NEV. REV. STAT. §§ 689A.0415, 689A.0417, 689B.0376, 689B.0377, 695B.1916, 695B.1918, 695C.1715, 695C.1717 (2002).

91 N.M. STAT. ANN. §§ 59A-22-42, 59A-22-42, 59A-46-44 (Michie Supp. 2002).

92 N.C. GEN. STAT. ANN. § 58-3-178 (2001). The North Carolina contraceptive coverage statute covering small employer carriers, N.C. GEN. STAT. § 58-50-155, does not contain a religious exemption provision.

93 Preven® is a postcoital emergency contraceptive consisting of ethinyl estradiol and levonorgestrel. It is “safe and effective for pregnancy prevention in women who have had unprotected sexual intercourse … . [I]t substantially reduces the chances of becoming pregnant when used within 72 hours after unprotected sexual intercourse.” FOOD & DRUG ADMIN., FDA Approves Application for Preven Emergency Contraceptive Kit, available at http://www.fda.gov/bbs/topics/ANSWERS/ANS00892.html (Sept. 2, 1998).

94 R.I. GEN. LAWS §§ 27-18-57, 27-19-48, 27-20-43, 27-41-59 (2001).

95 TEX. INS. CODE ANN. art. 21.52L (Vernon 2002).

96 ARIZ. REV. STAT. §§ 20-826, 20-1057.08, 20-1402, 20-1404, 20-2329 (2001).

97 Id.

98 MASS. GEN. LAWS ch. 175, § 47W (2002); id. ch. 176A, § 8W; id. ch. 176B, § 4W; id. ch. 176G, § 40.

99 See Christopher Tangney, Massachusetts House Votes to Force Coverage of Contraceptives, BOSTON GLOBE, Jan. 31, 2002, at B1.

100 MASS. GEN. LAWS ch. 175, § 47W; id. ch. 176A, § 8W; id. ch. 176B, § 4W; id. ch. 176G, § 40.

101 N.Y. INS. LAW §§ 3221, 4303 (2002).

102 CAL. HEALTH & SAFETY CODE § 1367.25; CAL. INS. CODE § 10123.196 (West. Supp. 2002).

103 CAL. HEALTH & SAFETY CODE § 1367.25(b)(1)(A).

104 109 Cal. Rptr. 2d 176 (2001).

105 Id. at 184.

106 Id.

107 Id. at 181.

108 Id.

109 Id. at 185.

110 Id. at 181.

111 Id. at 184.

112 Id. at 182.

113 Id. at 184.

114 Id. at 181.

115 Id. at 185.

116 Id.

117 Id. at 192.

118 Id. at 185.

119 Id. at 186.

120 Id. at 181.

121 Id. at 190.

122 Id.

123 Id.

124 Id. at 200.

125 Id. at 191.

126 Id.

127 Id. at 200 (citing Lemon, 403 U.S. 602 (1971)).

128 Id. at 203 (citing Lemon, 403 U.S. at 612-13).

129 Id. at 203-04.

130 Id. at 204.

131 Id.

132 Id.

133 Id. at 205.

134 Id. at 206.

135 See California Catholic Conference, Press Release, California Supreme Court Grants Review of Appeals Court Decision Which Denied Catholic Charities Religious Freedom, at http://www.cacatholic.org/h/pr/pr00927-47294.html (Sept. 27, 2001).

136 See California Catholic Conference, Religious Freedom, at http://www.cacatholic.org/relfree.html (visited Oct. 25, 2002) (“Of the approximately 8,000 petitions the high court receives annually, only 125-150 are granted review.”).

137 29 U.S.C. §§ 1001-1461.

138 Id. § 1144(a) (emphasis added).

139 EEOC DECISION, supra note 15.

140 Id.

141 Id.

142 CAL. ABORTION & REPRODUCTIVE RIGHTS ACTION LEAGUE, EEOC RULING A STEP FORWARD FOR CONTRACEPTIVE COVERAGE, at http://www.choice.org/researchcenter/eeoc0101.html (last visited Oct. 25, 2002).

143 Id.

144 See S-104 Women's Health Hearing, supra note 13.

145 See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1268 (W.D. Wash. 2001).

146 Id. at 1271-72.

147 Id. at 1271.

148 42 U.S.C. § 2000e(k) (emphasis added).

149 Id.

150 Erickson, 141 F. Supp. 2d at 1269.

151 Id. at 1271.

152 Id. at 1272.

153 Id.

154 Id.

155 Id. at 1273.

156 Id. (citation omitted).

157 Id. at 1272.

158 Id. at 1274.

159 Id. (noting Congress's “decisive” overruling of General Electric Co. v. Gilbert, 429 U.S. 125 (1976), where the Supreme Court refused to extend Title VII protection to recipients of benefit plans that failed to cover pregnancy-related disabilities).

160 Id.

161 Id.

162 Id.

163 See The Late, Late Show with Craig Kilborn, supra note 2.

164 See Lankarge, supra note 1.

165 See CRLP, supra note 10.

166 29 U.S.C. § 1144(a). See discussion supra Part III.B.

167 See Lankarge, supra note 1.

168 See Bill Rankin, Wal-Mart Facing Class-action Lawsuit; Lack of Worker Coverage for Birth Control Disputed, ATLANTA J. AND CONST., Aug. 31, 2002, at 1F (noting that WalMart has over one million employees).

169 Id.

170 See KAISER FAMILY FOUND., FLIGHT ATTENDANT FILES COMPLAINT AGAINST AMERICAN AIRLINES CHARGING REPRODUCTIVE HEALTH COVERAGE DISCRIMINATION, DAILY REPRODUCTIVE HEALTH REP. (Apr. 24, 2001), available at http://report.kff.org/archive/repro/2001/4/kr010424.1.htm.

171 Id.

172 See generally Hayden, supra note 5.

173 See Erickson, 141 F. Supp. 2d at 1266.

174 See EEOC DECISION, supra note 15.

175 See S-104 Women's Health Hearing, supra note 13 (including testimony by pharmacists, physicians and attorneys who recounted the hardships imposed on women and families in the absence of contraceptive coverage).

176 Id. Nearly fifty percent of all pregnancies in the United States are unintended, making it the nation with the highest rate of unintended pregnancies among all industrialized nations in the world. The United States also has the twenty-first highest maternal mortality rate in the world. Id.

177 See PLANNED PARENTHOOD FEDERATION OF AMERICA, supra note 12 (noting that ten percent of infant deaths could be prevented if all pregnancies were planned).

178 Id.

179 See WASHINGTON STATE NAT’L ORG. FOR WOMEN, supra note 33.

180 See Darroch, supra note 32 (comparing the tremendous economic, personal and social costs of unplanned pregnancies with the estimated added cost per month to employers for adding contraceptive coverage).

181 See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001).

182 See Lankarge, supra note 1.

183 See KAISER FAMILY FOUND., supra note 170.

184 See S-104 Women's Health Hearing, supra note 13.

185 See Darroch, supra note 32; see also discussion supra Part I.C.

186 See NAT’L WOMEN's LAW CTR., supra note 38.

187 See Darroch, supra note 32; see also MARIA O’BRIEN HYLTON & LORRAINE A. SCHMALL, CASES AND MATERIALS ON EMPLOYEE BENEFITS LAW 36 (1998) (“Once the cost [of offering discretionary benefits] becomes excessively expensive or the regulatory scheme complicated, employers can (and do) opt out.”).

188 See HYLTON & SCHMALL, supra note 187.

189 See id.

190 See Cal. HEALTH & SAFETY CODE § 1367.25.

191 See CONN. GEN. STAT. §§ 38a-503e, 38a-530e (West Supp. 2002).

192 Id. § 38a-503e(b)(2) (emphasis added).