Costly contraceptive ruling

Court says health plan's failure to cover birth control isn't discrimination.

Published March 16, 2007 11:35PM (EDT)

Here's an interesting question: Is it sexual discrimination for a company's health plan to exclude coverage of contraceptives? The answer is "no," according to the 8th U.S. Circuit of Appeals. The court just ruled that Union Pacific Railroad's health plan is not discriminatory because it neglects coverage of both female contraceptives (like birth control pills and diaphragms) and male birth control methods (like condoms and vasectomies). Sounds like UPR's health plan needs a snappy new slogan: "All plan members receive the same crappy treatment!"

Is it really fair to hold male and female contraceptive methods as equivalent, though? The federal judge who originally ruled on the case didn't think so and in 2005 determined that the health plan violates the Civil Rights Act. The recent reversal of that decision was hardly clear cut: "One of the three appeals court judges filed a dissenting opinion because he believes Union Pacific's plan does discriminate," reports Businessweek. That dissenting judge said, "Women are uniquely and specifically disadvantaged by Union Pacific's failure to cover prescription contraception." That's the same argument made by the Center for Reproductive Rights, which today noted in a press release what should be the obvious: "Only women can become pregnant."

In the appellate court, the plaintiffs argued that the policy violated the Pregnancy Discrimination Act. As Ann Friedman explains on TAPPED: "The language in [the PDA] says it applies to 'women affected by pregnancy,' not 'pregnant women'...But the appellate judges rejected the argument on the basis that the PDA does not specifically mention contraception."

Consider that the health plan does cover "preventive medications used only by men as well as Rogaine for hair loss and Viagra for male sexual dysfunction," says the Center for Reproductive Rights. Now that's a bitter pill -- har, har -- to swallow.

By Tracy Clark-Flory

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