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The HHS Contraception Coverage Mandate: How Did We Get Here? (con’t)

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Legal Background

The legal justification for mandated contraceptive coverage has its foundation in the Civil Rights Act of 1964. In particular, mandate supporters cite Title VII of the act which prohibits discrimination against any person “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”[iv] It is important to note that Title VII never specifically addressed the issue of contraception, but its gender discrimination protections have been applied to health insurance coverage because such coverage is seen as part-in-parcel of employee compensation. As such, mandate supporters have long-argued that excluding contraception from health insurance plans constitutes a violation of Title VII.[v]

In 1978, the US Congress amended Title VII by enacting the Pregnancy Discrimination Act (PDA). Written to counter the US Supreme Court decision in General Electric Co. v. Gilbert,[vi] the PDA clarified that sex discrimination included any unequal treatment “because of – or on the basis of – pregnancy, childbirth, or related medical conditions.” It also maintained that any woman “affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purpose, including receipt of benefits under fringe benefit programs, as all other persons not so affected but similar in their ability or inability to work.”[vii] Just like Title VII, the PDA never specifically addressed the issue of contraception, however interpretation of the bill’s language in subsequent court rulings provided ammunition for mandate supporters. In International Union, UAW v. Johnson Controls, the Supreme Court ruled that an employer violated Title VII, as amended by the PDA, when it excluded women from particular jobs out of concern for the health of the employee’s potential fetus. The rationale for this decision included, in part, that the PDA’s prohibition against pregnancy discrimination applied not only to policies that affected women who were pregnant, but also policies that affected a woman’s ability to become pregnant.[viii] Thus, mandate supporters have used the International Union case to argue that any health care policy affecting a woman’s ability to become pregnant must necessarily include contraception.

In addition, supporters cite the Supreme Court’s broad interpretation of the PDA term “related.” Recall that the PDA prohibited discrimination based on “pregnancy, childbirth, or related medical condition,” however it never clarified what “related” actually meant. The Court, in Pacourek v. Inland Steel, held that “related is a generous choice of wording, suggesting that interpretation should favor inclusion rather than exclusion in the close cases.” Mandate supporters have used this language of the Court’s to argue that as contraception is “related” to pregnancy, all health insurance plans must include contraceptive coverage.[ix]

Title VII was passed in 1964 and the PDA in 1978, but efforts to require contraceptive coverage in health care plans did not bear fruit for a number of years. In the mid-1990s Viagra was approved by the FDA and most health insurance plans quickly moved to cover it. In response, feminist groups calling for “contraceptive equality” filed lawsuits arguing that if health care plans covered Viagra they should also cover prescription contraceptives.[x] In 1998, the United States Congress granted contraceptive coverage to federal employees through the Federal Employees Health Benefits Program (FEHBP). As the FEHBP is the largest employer-sponsored health care program in the country, it set a precedent that many state and private employers soon followed.[xi]

In 2000, mandate supporters scored a major victory when the EEOC held that refusing to include contraceptive coverage in employer-sponsored health care plans constituted a violation of Title VII as amended by the PDA. The rationale for this decision was that because prescription contraceptives affected only woman, refusing to include them constituted a “sex-based exclusion.” Further justifying this new policy, the EEOC stated the following:

“This conclusion [to mandate contraceptive coverage] is supported by additional language in the PDA that specifically exempts employers from any obligation to offer health benefits for abortion in most circumstances. Congress understood that absent an explicit exemption, the PDA would require coverage of medical expenses resulting from a woman’s decision to terminate a pregnancy. The same analysis applies to the question of whether the PDA covers prescription contraceptives … Had Congress meant to limit the applicability of the PDA to contraception … it would have enacted a statutory exemption similar to the abortion exemption. Such an exemption, of course, does not exist for contraceptives.” [xii]

It is important to note that EEOC holdings, while not legally binding, can be “highly persuasive” because the EEOC is the federal entity charged with enforcing Title VII. As such, its 2000 revised guideline was a “major turning point” in the debate over mandated contraceptive coverage and it inspired many women to file Title VII discrimination claims against their employers.[xiii]

In spite of the revised EEOC guideline, subsequent court rulings on mandated contraceptive coverage have only served to confuse the issue rather than clarify it. For example, in 2001 a U.S. District Court in Erickson v. Bartell Drug Co. ruled that an employer’s refusal to include contraceptives in its health care plan constituted a violation of the PDA because when an employer selectively excludes particular drugs from an otherwise comprehensive plan, it “has the legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics, and that it provides equally comprehensive coverage for both sexes.”[xiv] While this ruling was in line with the revised EEOC guideline and has been often cited as legal precedent by mandate supporters, its impact is actually quite minimal. The reasons for this are two-fold. First, legal commentators have argued that the Erickson ruling “over-extended” the scope of both Title VII and the PDA. The rationale for this claim is that in law the term “contraception” is distinguishable from terms “pregnancy” and “childbirth,”[xv] and this distinction is supported by the decision of the 8th Circuit Court of Appeals in Krauel v. Iowa Methodist Medical Center.[xvi] Second, Erickson was a district court case and by law a district court decision is binding only on the parties involved in a particular case. The decision is not binding on anyone else, thus one cannot apply it generally across every jurisdiction although this is essentially what has happened. Mandate supporters often cite Erickson as a legal precedent for their position, but as a matter of law the decision was only narrowly applicable. Yes, the district court applied its interpretation of the revised EEOC guideline to the defendant Bartell, but this is as far as the decision could ever extend.[xvii]

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