Equitable Prescription Drug Coverage: Preventing Sex Discrimination in Employer-Provided Health Plans

Source: Steve Befort and Elizabeth Canney Borer, Louisiana Law Review, Vol. 70, 2009

From the abstract:
Nearly half of large, employer-sponsored group health plans in the United States do not cover prescription contraceptives used by women. This exclusion contributes to unintended pregnancies, higher out-of-pocket expenses, and adverse social consequences. The federal courts currently are split on whether this exclusion violates Title VII as amended by the Pregnancy Discrimination Act (PDA). In a recent decision that is of first impression at the circuit court level, the Eighth Circuit ruled in In re Union Pacific Railroad Employment Practices Litigation that the lack of contraception coverage in an employee health insurance plan that covered Rogaine and Viagra for men did not violate the PDA because contraception is not related to pregnancy.

This article reviews the pertinent legislative history and case law and proposes a two-part strategy for expanding the availability of prescription contraceptives in employer-sponsored health plans. First, employers that exclude prescription contraceptives from employee health insurance plans should be held to violate the PDA. Such a violation occurs because the failure to provide insurance coverage for prescription contraceptives necessarily affects a sex-related medical condition since only women can become pregnant. This article additionally urges the adoption of an amendment to ERISA – the Equity in Prescription Insurance and Contraceptive Coverage Act – which would mandate all group health plans to include prescription coverage as a matter of federal law. Such an enactment would avoid ERISA preemption and serve to require prescription contraceptive coverage in both insurance-based and self-insured employer health plans.

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