Exclusion of Contraceptive Coverage Brings Bias Suit

WASHINGTON —  Planned Parenthood on Wednesday filed a lawsuit against a Washington drugstore chain, arguing that employers whose insurance plans exclude contraceptives but cover other prescription drugs are in effect practicing sex discrimination.

The lawsuit, filed in federal district court in Seattle, signals a new front in what is becoming a battleground over women’s health issues in state legislatures and on Capitol Hill. In the District of Columbia, the City Council is in a heated fight over whether such coverage should be mandatory. Similar legislation has stalled in the Massachusetts Legislature. And Iowa recently passed a law requiring insurance companies to provide birth control coverage.

In Congress, however, a bipartisan bill that would require all insurers and health plans to cover contraceptives, if they cover other prescription drugs, has been stalled for nearly four years.

Planned Parenthood officials are hoping that the Seattle lawsuit, brought on behalf of female workers at Bartell Drug Co., which describes itself as the nation’s oldest drugstore chain, will bring national attention to the issue and also push individual employers to cover contraceptives.

“This is a fundamental gender inequity in health care,” said Gloria Feldt, president of Planned Parenthood of America. “It is discrimination when male employees get their basic health care needs covered by insurance but women are forced to pay for theirs.”

The lead plaintiff in the case, Jennifer Erickson, a 26-year-old pharmacist, is married and says that she would like to have children. But she wants to wait until she and her husband think they are ready. “As a pharmacist, I see firsthand that contraceptives are central to women’s health care,” Erickson said.

Chain Defends Insurance Plan

In a statement, Bartell Drug, which has about 1,350 employees, defended its policy. “We provide a comprehensive health insurance plan at no cost to our employees,” said Jean Bartell Barber, the chief financial officer. “No medical benefit program covers every possible cost. . . . We do not cover prescriptions for Viagra, infertility drugs, drugs for weight reduction, immunization agents . . . and other items.”

Legislative efforts to provide such coverage have met with resistance, as two powerful forces--business interests and the Roman Catholic Church--have sought to block contraceptive coverage requirements.

The lawsuit is being brought under Title VII of the U.S. Civil Rights Act, which prohibits employment discrimination on the basis of race and sex. It is the first time that lawyers have attempted to use Title VII to win contraceptive coverage for women.

The immediate effect of any ruling in the lawsuit may be limited because under Title VII claims can be brought only against an individual employer.

But if Planned Parenthood prevails, the case could set a significant precedent, according to some attorneys and health care experts. A provision of Title VII allows for reimbursement of attorney fees if their lawsuit is successful, and that might prompt other attorneys to use the same legal grounds in suits against other employers.

“Depending on the outcome, it’s likely to put much more pressure on an issue that’s stalled at the federal level and is moving very slowly through the states,” said Alina Salganicoff, director for women’s health policy at the nonpartisan Kaiser Family Foundation, a Palo Alto-based health care research organization.

Discriminatory Factor Called Key

Thirteen states, including California, mandate coverage of prescription contraceptives for state-regulated insurance plans, according to a recent survey by the Alan Guttmacher Institute, a New York-based research group that focuses on reproductive health. Those regulations do not apply to 56 million workers covered by insurance plans not regulated by states.

Sylvia Law, a professor at New York University Law School and a Title VII expert, said that for the case to be successful Planned Parenthood would have to demonstrate that failure to cover contraception is discriminatory. Then the employer would have the chance to argue that there are reasons for the policy besides discrimination. Employers typically have argued that, since they pay the lion’s share of the cost of health care coverage, they have the right to decide which services are covered.

However, in this case, Law said, the argument could be difficult for the employer to prove. “The reality is that prescription contraceptives are all methods used by women, and so it’s de facto gender discrimination.”

Typically, insurers cover vasectomy, one of the more common male methods of contraception.

A second point, Law said, is that only women are physically subject to the consequence of not using contraception: pregnancy. It is the woman who must either carry the child to term or have an abortion, both of which involve health risks.

Viagra Issue Spurs Action

For years the lack of contraceptive coverage in many health plans was largely overlooked. But three years ago, when some insurers sought to cover the impotence drug Viagra, which is intended for use by men, many women and public-health advocates were outraged and began to fight for contraception coverage.

That lent energy to efforts in state legislatures and in Congress to require coverage of prescription birth control, such as “the pill,” by all health plans that cover other prescription drugs but exclude contraceptives.

Such exclusions are not uncommon.

For instance, birth control pills, the most popular method of reversible birth control, are covered by only one-third of fee-for-service insurance plans and 40% of preferred provider organizations, according to a national survey by the Kaiser Family Foundation. Birth control pills cost about $350 a year. Other methods, such as the diaphragm, are even more rarely covered by insurance.

“The whole point here is . . . to have coverage of contraceptives become a normal part of health care coverage, just like pregnancy and childbirth,” said Susan Cohen, a lawyer and analyst for the Guttmacher Institute.

Business groups have tended to resist any mandates on their health care coverage, complaining that they add to the already high cost of health insurance. The cost of adding full contraceptive coverage to an insurance plan would run about $22 a year per enrollee, according to a 1998 actuarial study commissioned by Guttmacher.

“Employers should be able to determine that mix of benefits as appropriate to their worker population,” said Kate Sullivan, director of health care policy at the U.S. Chamber of Commerce.

“The plans that don’t cover contraceptives tend to be those that only cover things that are medically necessary,” Sullivan said. “So they cover a minimum of preventive care and they would not cover lifestyle drugs, like Retin A or hair growth drugs. Not that I’m putting contraceptives in the same category, but those plans only cover drugs that are medically necessary.”

The National Conference of Catholic Bishops opposes any mandate on contraceptive coverage unless it includes an exemption for all Catholic employers, such as Catholic hospitals, schools, universities and social service organizations.

“We have been seeking a conscience clause in the arena of mandatory contraceptive coverage that protects religious employers--whoever would be asked to take actions contrary to their consciences,” said Helen Alvare, a spokeswoman for the National Conference of Catholic Bishops.

The only acceptable birth control, in the bishops’ view, is natural family planning, in which couples time their sexual relations to try to ensure that the woman is less likely to become pregnant.

Many anti-abortion groups also take a strong stand against birth control but make a distinction between so-called barrier methods of contraception, such as the diaphragm and the condom, which they view as permissible, and birth control pills; injectable contraceptives, such as DepoProvera; and the IUD--which they argue can stop a fertilized egg from implanting and thus are a type of abortion.

But the issue has galvanized reproductive health groups that, accustomed to defending rights to abortion, now have a somewhat less controversial cause to embrace. And in polls, a clear majority of Americans support contraceptive coverage even when it adds to the cost of their health insurance.

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Times staff writer Jacqueline Newmyer contributed to this story.