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.
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