erickson v. bartell drug co
TRANSCRIPT
No. 01-35870 _________________
IN THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_________________
JENNIFER ERICKSON,
Plaintiff-Appellee,
v.
THE BARTELL DRUG CO.,
Defendant-Appellant. __________________________
On Appeal from the United States District Court
for the Western District of Washington __________________________
BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL
AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT AND IN SUPPORT OF REVERSAL
__________________________ Heather L. MacDougall Ann Elizabeth Reesman* EMPLOYMENT LAW McGUINESS NORRIS AFFILIATES, LLC & WILLIAMS, LLP 3352 Roundtree Estates Court 1015 Fifteenth St., N.W., Suite 1200 Falls Church, VA 22042 Washington, D.C. 20005 (703) 206-9560 (202) 789-8600 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL February 4, 2002 *Counsel of Record
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and 29(c), Amicus Curiae Equal
Employment Advisory Council discloses the following:
1) The Equal Employment Advisory Council has no parent
corporations.
2) No publicly held company owns 10% or more stock in the
Equal Employment Advisory Council.
February 4, 2002 ____________________________________ Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W. Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................ iii
STATEMENT OF THE ISSUE........................................................................ 1
INTEREST OF THE AMICUS CURIAE.......................................................... 1
STATEMENT OF THE CASE......................................................................... 3
SUMMARY OF ARGUMENT ........................................................................ 4
ARGUMENT .................................................................................................... 7
I. THE DISTRICT ERRED IN CONCLUDING THAT THE EMPLOYER’S PRESCRIPTION PLAN VIOLATED TITLE VII, AS AMENDED BY THE PREGNANCY DISCRIMINATION ACT, BY DENYING COVERAGE FOR CONTRACEPTIVES .......................... 7
A. The Prevention of Pregnancy Is Not Protected by the PDA
Because It Is Not “Pregnancy, Childbirth, or [a] Related Medical Condition[].”.................................................................................. 7
B. The PDA Requires Only That “Pregnancy, Childbirth, or
Related Medical Conditions” Be Treated in a Neutral Way. ...... 12 II. THE ISSUE OF WHETHER EMPLOYER-SPONSORED PLANS
SHOULD COVER CONTRACEPTIVES IS NOT A LEGAL ISSUE FOR THE COURTS TO DECIDE BUT A PUBLIC POLICY ISSUE TO BE DETERMINED BY THE PRIVATE MARKET FORCES OR, IN THE ALTERNATIVE, BY LEGISLATION. ........................... 16
A. Any Increase in the Cost of Health Insurance Coverage
Resulting from Either Judicial or Legislative Mandates Jeopardizes the Availability and Affordability of Plans to Employers and Their Employees. ................................................ 17
B. In Considering the Issue Before It, This Court Should Also
Consider the Broader Impact of Any Decision That Requires Insurance Plans Provide Coverage of Any Prescription,
ii
Treatment, or Medical Condition That Is Only Available to or Somehow Unique to One Sex. ..................................................... 21
C. Because the PDA Does Not Mandate That an Employer’s
Prescription Plan Cover Contraceptives, if Coverage Is To Be Required, It Is for Congress To Decide. ...................................... 23
CONCLUSION................................................................................................. 27
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).................................8
Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wa. 2001).................................... 3, 4, 16, 17 Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487 (D. Colo. 1997) ..........................................................11
International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991) ..................................................................... 5, 13, 14
Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674 (8th Cir. 1996) ................................................................. 4, 10
Laporta v. Wal-Mart Stores, Inc., 163 F. Supp.2d 758 (W.D. Mich. 2001)...................................................11
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ...................................................................... 5, 14, 15
Norfolk & W. Ry. v. American Train Dispatchers' Ass'n, 499 U.S. 117 (1991) ...................................................................................8
Piantanida v. Wyman Ctr., Inc., 116 F.3d 340 (8th Cir. 1997)............ 4, 5, 11
The Lottawanna, 88 U.S. 558 (1874) ....................................................... 6, 26
Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D. Ky.
1990), aff’d mem., 951 F.2d 351 (6th Cir. 1991) .....................................11
iv
STATUTES
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ..................................................................... 1, 4, 7, 9
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ...........................................................................1
42 U.S.C. § 2000e-2(a)...............................................................................7
Md. Code Ann., Ins. § 15-826 .......................................................................24
N.C. Gen. Stat. § 58-3-178(c)(4)(b) .............................................................25
PENDING LEGISLATION
Equity in Prescription Insurance and Contraceptive Coverage Act, H.R. 1111, 107th Cong. (2001) ................................................. 23, 24
Equity in Prescription Insurance and Contraceptive Coverage
Act, S. 104, 107th Cong. (2001)........................................................ 23, 24
LEGISLATIVE HISTORY
144 Cong. Rec. H5718 (daily ed. July 16, 1998) ..........................................25
144 Cong. Rec. H5721 (daily ed. July 16, 1998) ..........................................25
H.R. Rep. No. 95-948 (Mar. 13, 1978) and H.R. Conf. Rep. No. 95-1786 (Oct. 13, 1978) reprinted in 1978 U.S.C.C.A.N. 4749-67................................................................................8
Senate Comm. on Labor and Human Resources, 95th Cong., 2d
Sess., Legislative History of the Pregnancy Discrimination Act of 1978 (Comm. Print 1980)................................................................8
v
MISCELLANEOUS
Employee Benefits Research Institute, EBRI Issue Brief No. 213, Executive Summary, Employment-Based Health Benefits: Who Is Offered Coverage vs. Who Takes It (September 1999) .....................................................................................20
Kaiser Family Foundation, Fact Sheet, Coverage of
Gynecological Care and Contraceptives (December 2000) ....................14
Kaiser Prescription Drug Trends: A Chartbook Update (November 2001)......................................................................................18
Kaiser/HRET, Employer Health Benefits: 2001 Annual Survey
(2001)................................................................................................. 18, 20
National Conference of State Legislatures, Women’s Health Insurance Coverage for Contraceptives (December 2001) .....................24
Sarah E. Bycott, Note, Controversy Aroused: North Carolina
Mandates Insurance Coverage of Contraceptives in the Wake of Viagra, 79 N.C. L. Rev. 779 (March 2001) ........................ 18, 25
1
The Equal Employment Advisory Council respectfully submits this
brief amicus curiae with the consent of all parties. The brief urges the Court
to reverse the district court’s ruling and thus supports the position of
Defendant-Appellant The Bartell Drug Company before this Court.
STATEMENT OF THE ISSUE
Whether the exclusion of prescription contraceptives from Defendant-
Appellant’s employee prescription drug benefit plan constitutes
discrimination on the basis of sex in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), as amended by the
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”).
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC) is a nationwide
association of employers organized in 1976 to promote sound approaches to
the elimination of discriminatory employment practices. Its membership
now includes more than 340 of the nation’s largest private sector companies,
collectively providing employment to more than 17 million people
throughout the United States. EEAC’s directors and officers include many
of industry’s leading experts in the field of equal employment opportunity.
Their combined experience gives EEAC an unmatched depth of knowledge
of the practical, as well as legal, considerations relevant to the proper
2
interpretation and application of equal employment policies and
requirements. EEAC’s members are firmly committed to the principles of
nondiscrimination and equal employment opportunity.
All of EEAC’s members are employers subject to Title VII and other
equal employment statutes and regulations. EEAC member companies
typically provide their employees (and the employees’ dependents) with
partially or fully-paid group health insurance, often including coverage for
prescription drugs. In fact, the vast majority of Americans, many of whom
are employees of EEAC member companies, insure against health care costs
by participating in employer-sponsored group health plans. For decades,
employers have voluntarily provided health benefits designed to meet the
health and financial needs of their workforces and their dependents.
Because of the importance of this employee benefit to employees and
employers alike, the issue presented in this appeal is extremely important to
the nationwide constituency that EEAC represents.
EEAC thus has an interest in, and a familiarity with, the legal and
public policy issues presented to the Court in this case. Furthermore,
because of its significant experience in equal employment policy matters,
EEAC is uniquely situated to brief the Court on the importance of the issues
beyond the immediate concerns of the parties to the case.
3
STATEMENT OF THE CASE
This matter is proceeding as a class action on behalf of all female
employees of Bartell Drug Company (“Bartell”) who at any time after
December 29, 1997, were enrolled in Bartell’s Prescription Benefit Plan for
non-union employees while using prescription contraceptives. Erickson v.
Bartell Drug Co., 141 F. Supp.2d 1266, 1268 (W.D. Wash. 2001). Plaintiff-
Appellee Jennifer Erickson asserts that Bartell’s decision not to cover
prescription contraceptives, such as birth control pills, under its Prescription
Benefit Plan for non-union employees violates Title VII. ER 152.
Bartell’s drug plan, which is self-insured, covers prescription drugs.
The plan contains some specific exclusions from coverage, including
contraceptive drugs and devices, drugs prescribed for weight reduction,
infertility drugs, smoking cessation drugs, dermatologicals for cosmetic
purposes, growth hormones, and experimental drugs. ER 183-84.
Erickson’s complaint asserts claims of disparate treatment and
disparate impact, and demands an injunction mandating that Bartell cover
the five Food and Drug Administration-approved types of reversible
prescription contraception. Amended Complaint, Prayer for Relief, ¶ 48(c) ;
ER 12, 177-78. Erickson moved for summary judgment on her disparate
treatment claim, and Bartell sought summary judgment on both the disparate
4
treatment and disparate impact claims. The district court granted Erickson’s
motion for summary judgment. Erickson, 141 F. Supp.2d at 1277. Because
it granted summary judgment in favor of Erickson on her disparate treatment
claim, the district court determined that it need not consider Bartell’s motion
for summary judgment regarding the disparate impact claim. Id. Bartell
filed a timely appeal of the district court’s ruling.
SUMMARY OF ARGUMENT
In the Pregnancy Discrimination Act (PDA) in 1978, Congress
explicitly amended Title VII of the Civil Rights Act of 1964 to provide that
discrimination “on the basis of sex” includes discrimination “because of or
on the basis of pregnancy, childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k). The plain language of the PDA contains no specific
reference to contraceptives and does not suggest that “related medical
conditions” extend outside the context of “pregnancy” and “childbirth.”
Indeed, canons of statutory construction (see Norfolk & W. Ry. v. American
Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991)) dictate that “related
medical conditions” should be understood as referring only to those related
directly to “pregnancy” and “childbirth.” Other courts have similarly
interpreted the PDA in this manner. See Krauel v. Iowa Methodist Med.
Ctr., 95 F.3d 674 (8th Cir. 1996); Piantanida v. Wyman Ctr., Inc., 116 F.3d
5
340 (8th Cir. 1997). Pregnancy and childbirth, which occur after
conception, are categorically different than efforts that are taken to prevent
conception from occurring. Such efforts, including prescription
contraceptives, are therefore outside the purview of the PDA.
Even if the prevention of pregnancy were covered by the PDA’s
protective language, the statute would not mandate coverage of every
associated expense. Rather, the statute provides only that an employer must
treat pregnancy, childbirth, or related medical conditions in a neutral way.
The PDA does not require that an employer provide health insurance
coverage for every method that avoids pregnancy (or even every method that
enables pregnancy); thus, the District Court’s reliance upon International
Union, UAW v. Johnson Controls, 499 U.S. 187 (1991), and Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), was
misplaced. A correct construction of the PDA, as supported by U.S.
Supreme Court cases interpreting the statute, requires a determination by this
Court that Bartell’s prescription plan does not violate the PDA as all its
employees and their dependents are excluded from receiving contraceptive
coverage.
The District Court erred by reaching its determination that Bartell’s
exclusion for contraceptives from its prescription plan violated the PDA not
6
based on the language of the PDA―as clearly support could not be found in
the statute itself―but on emotional appeals that the availability of
contraceptive coverage within the prescription plan was necessary to prevent
dire social consequences. It is for Congress, however, to make the law, not
the courts. See The Lottawanna, 88 U.S. 558, 576-77 (1874) (“[W]e must
always remember that the court cannot make the law…. If any change is
desired in [a law], … it must be made by the legislative department”). As
Congress has yet to pass legislation requiring employers to provide coverage
of contraceptives within their prescription plans, the District Court erred in
issuing this mandate. Moreover, any such mandate must come from
Congress (or our state legislatures) only after giving this difficult issue a full
and fair public debate, including a consideration of how such a mandate will
impact the already escalating cost of health insurance and spending on
prescription drugs; a consideration of the broader impact of any decision that
requires health insurance plans to provide coverage of any prescription,
treatment, or medical condition that is only available to or somehow unique
to one sex; and a consideration of the other related politically charged
issues―the resolution of which will have far reaching social consequences.
7
ARGUMENT
I. THE DISTRICT ERRED IN CONCLUDING THAT THE EMPLOYER’S PRESCRIPTION PLAN VIOLATED TITLE VII, AS AMENDED BY THE PREGNANCY DISCRIMINATION ACT, BY DENYING COVERAGE FOR CONTRACEPTIVES
A. The Prevention of Pregnancy Is Not Protected by the PDA
Because It Is Not “Pregnancy, Childbirth, or [a] Related Medical Condition[]”
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits
discrimination in employment on the basis of race, color, religion, sex, and
national origin. 42 U.S.C. § 2000e-2(a). The Pregnancy Discrimination
Act, passed in 1978, amended Title VII to provide that discrimination “on
the basis of sex” includes discrimination “because of or on the basis of
pregnancy, childbirth, or related medical conditions.” 42 U.S.C.
§ 2000e(k).1
1 The entire definition provides:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.
42 U.S.C. § 2000e(k).
8
Under the plain language of the statute, prescription contraceptives are
not within the purview of the PDA’s protections and requiring employers to
cover contraceptives under their prescription plans would impermissibly
extend the statute beyond its intended scope. First, there is no specific
reference to contraceptives in the PDA. The absence of any specific
reference to “contraception” underscores the statute’s prime purpose of
prohibiting discrimination against women affected by pregnancy, which is
clearly different than efforts engaged in by men and women to prevent
conception. See Senate Comm. on Labor and Human Resources, 95th
Cong., 2d Sess., Legislative History of the Pregnancy Discrimination Act of
1978 (Comm. Print 1980); see also H.R. Rep. No. 95-948 (Mar. 13, 1978)
(Education and Labor Comm.) and H.R. Conf. Rep. No. 95-1786 (Oct. 13,
1978) reprinted in 1978 U.S.C.C.A.N. 4749-67.
In addition, basic rules of statutory construction place prescription
contraceptives outside the purview of the PDA. Under general rules of
statutory construction, “when a general term follows a specific one, the
general term should be understood as a reference to subjects akin to the one
with specific enumeration.” Norfolk & W. Ry. v. American Train
Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991). See also Circuit City Stores,
Inc. v. Adams, 532 U.S. 105, 121 S. Ct. 1302, 1308-1309 (2001) (citing 2A
9
N. Singer, Sutherland on Statutes and Statutory Construction 47.17 (1991))
(the application of the maxim ejusdem generis requires that “[w]here general
words follow specific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words”). Thus, “related medical
conditions,” a general phrase, thus should be understood only as referring to
conditions related to “pregnancy” and “childbirth,” the specific terms that
precede it. Pregnancy and childbirth, which occur after conception, are
entirely different activities than those intended to prevent conception from
occurring.
The PDA’s specific provision that it “shall not require an employer to
pay for health insurance benefits for abortion, except where the life of the
mother would be endangered if the fetus were carried to term, or except
where medical complications have arisen from an abortion,” see 42 U.S.C.
§ 2000e(k), does not compel a conclusion that excluding coverage for
prescription drugs is thereby unlawful. The abortion exception does not
suggest that Congress envisioned that pregnancy and related medical
conditions would encompass measures to avoid pregnancy. Abortion is not
the avoidance of pregnancy—it is the termination of a pregnancy that has
already occurred; thus, it is related to a woman’s pregnancy. Absent the
10
exemption, coverage for abortions would fall within the scope of the PDA’s
prohibition against discrimination based on pregnancy-related medical
conditions.2 Unlike abortions, however, prescription contraceptives prevent
the occurrence of “pregnancy, childbirth, or related medical conditions”
covered by the PDA.
Judicial interpretation of the PDA supports the position that not all
things dealing with a woman’s ability to reproduce are related to
“pregnancy” and “childbirth” and, moreover, that the exclusion of
prescription contraceptives from an employer’s prescription plan does not
constitute discrimination on the basis of sex. The only federal court of
appeals to address whether infertility is a medical condition “related” to
pregnancy or childbirth within the meaning of the PDA has concluded that it
is not. In Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir.
1996), the Eighth Circuit concluded that the general phrase “related medical
conditions” should be understood as referring to conditions related to the
specific terms of “pregnancy” and “childbirth.” Id. at 679. The court
observed that neither the plain language of the PDA nor the legislative
2 Moreover, as abortion was a highly controversial issue then, as it still is today, Congress sought to avoid the entanglement of this controversial issue in the debate over the PDA’s protections to women by excluding its coverage even though it was clearly within the scope of the term “pregnancy.”
11
history reflected any legislative intent to include infertility (a condition that
can affect both men and women) within the ambit of the PDA. Id. See also
Laporta v. Wal-Mart Stores, Inc., 163 F. Supp.2d 758, 770 (W.D. Mich.
2001) (finding Krauel as persuasive authority on the statutory construction
of the PDA). Likewise, in our enlightened society, we clearly believe that
the avoidance of an unwanted pregnancy is the responsibility of both men
and women, and there is no evidence that Congress intended the use of
contraceptives in order to avoid an unwanted pregnancy to be within the
ambit of the PDA.
Another decision from the Eighth Circuit sheds additional light on the
proper construction of the PDA. In Piantanida v. Wyman Center, Inc., 116
F.3d 340 (8th Cir. 1997), the court concluded that “an individual’s choice to
care for a child is not a ‘medical condition’ related to childbirth or
pregnancy.” Id. at 342 (emphasis added). The court observed that
parenthood is a social role chosen by all new parents who make the decision
to raise a child. Id. See also Fejes v. Gilpin Ventures, Inc., 960 F. Supp.
1487, 1491-92 (D. Colo. 1997); Wallace v. Pyro Mining Co., 789 F. Supp.
867, 869-70 (W.D. Ky. 1990) (Title VII and the PDA do not cover breast
feeding or childrearing concerns because they are not “pregnancy, childbirth
or related medical conditions”), aff’d mem., 951 F.2d 351 (6th Cir. 1991).
12
While the class of new parents of course includes women who give birth to
children, it also includes women who become mothers through adoption
rather than childbirth and men who become fathers either through adoption
or biology.
Similarly, the choice to attempt to prevent a pregnancy is not a
“medical condition” related to childbirth or pregnancy. Indeed, while only
women can become pregnant or personally experience childbirth, both men
and women use contraception to avoid conceiving a child. The fact that
prescription contraceptives are currently only available to women does not
change the fact that they are not a “medical condition” related to childbirth
or pregnancy. An employer’s prescription plan that excludes prescription
contraceptives is not discriminating on the gender-specific biological
functions of pregnancy and childbearing, but rather on a gender-neutral basis
possessible by all employees and their dependents. Thus, the District Court
erred in concluding that the use of contraceptives is within the purview of
the PDA; rather, their use is not protected by the PDA because
contraceptives are not “pregnancy, childbirth, or related medical conditions.”
B. The PDA Requires Only That “Pregnancy, Childbirth, or Related Medical Conditions” Be Treated in a Neutral Way.
Even if the prevention of pregnancy were covered by the PDA’s
protective language, the statute would not require that an employer provide
13
insurance coverage for every associated expense. The PDA does not require
that individuals receive special treatment regarding pregnancy, childbirth, or
related medical conditions, but only that such conditions be treated in a
neutral way.
The PDA merely requires that employment or access to an employer’s
fringe benefit program not be denied or limited on the basis of sex, including
pregnancy, ability to bear children, or related medical conditions. Thus, as
long as both men and women receive the same benefits and are subject to the
same exclusions under an employer’s insurance plan, the plan does not
discriminate on the basis of sex.
The U.S. Supreme Court’s decision in International Union, UAW v.
Johnson Controls, 499 U.S. 187 (1991), does not compel a different result.
In Johnson Controls, the Supreme Court was asked to determine the legality
of Johnson Controls’ “fetal-protection” policy, which prohibited women of
child-bearing age from working in jobs where they could be exposed to
levels of lead that are potentially damaging to a fetus. The Supreme Court
ruled that the policy violated Title VII as amended by the PDA because the
employer “has chosen to treat all its female employees as potentially
pregnant; that choice evinces discrimination on the basis of sex.” Id. at 199.
Such a policy, the Court reasoned, “is not neutral because it does not apply
14
to the reproductive capacity of the company’s male employees in the same
way as it applies to that of the females. Id.
The Court’s holding in Johnson Controls, however, cannot be
extended logically to require employers to fund prescription contraceptives.
First, Johnson Controls dealt with an explicit policy that discriminated
against women, but not men, based on their reproductive capacity. In
contrast, the employer in this case is not providing lesser benefits to women
because of their childbearing capacity. The fact that prescription
contraceptives are available only to women is due to the current status of
medical research, not to discrimination against women.3
Nor does the Supreme Court’s decision in Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), compel a different
conclusion. In Newport News the Supreme Court held that an employer's
benefit plan that provides female employees with greater hospitalization
benefits for pregnancy-related conditions than it did for spouses of male
employees violated the PDA. The provision effectively gave male
3 Of course, there are other methods of contraception other than prescription contraception. The most commonly used of all methods of contraception are tubal ligation (28%) and birth control pills (27%), followed by condoms (20%)―a male contraceptive that is available without a prescription. See Kaiser Family Foundation, Fact Sheet, Coverage of Gynecological Care and Contraceptives (December 2000), available at http://www.kff.org/content/2000/1557b/covgynserfs.pdf.
15
employees less coverage for their spouses than it gave female employees for
the same condition. The Court held that “discrimination against female
spouses in the provision of fringe benefits is also discrimination against male
employees.” 462 U.S. at 684.
Thus, Newport News dealt with providing lesser coverage for one
gender of employees by providing less benefits to the female dependents of
male employees. In the instant case, in contrast, the employer provides the
same level coverage for all employees. All employees and their dependents
are excluded from receiving contraceptive coverage. Thus, under a Newport
News analysis, male employees are affected in precisely the same way as
female employees because their spouses are prohibited from receiving
coverage for contraceptives.
An employer’s prescription drug plan which does not cover
contraceptives discriminates against those who use them only in the same
sense that it discriminates against those who might need penile prosthetic
implants (which may be medically necessary to cure impotence), Kerato-
refractive eye surgery (which may be medically necessary to cure vision
defects), or hearing aids (which may be medically necessary to overcome
deafness). All of these exclusions are gender neutral. The law does not
16
require that employers provide benefits to employees, but only that there be
equality in whatever is (or is not) provided.
II. THE ISSUE OF WHETHER EMPLOYER-SPONSORED PLANS SHOULD COVER CONTRACEPTIVES IS NOT A LEGAL ISSUE FOR THE COURTS TO DECIDE BUT A PUBLIC POLICY ISSUE TO BE DETERMINED BY THE PRIVATE MARKET FORCES OR, IN THE ALTERNATIVE, BY LEGISLATION.
In concluding that Bartell violated the PDA by excluding
contraceptives from its prescription plan, the district court, overlooking the
clear limitations of the prohibitions covered by the PDA, stated that
“regardless of whether the prevention of pregnancy falls within the phrase
‘pregnancy, childbirth, or related medical conditions,’” Erickson, 141 F.
Supp.2d at 1274, the exclusion is “inconsistent with the requirements of
federal law.” Id. at 1271. Apparently, this district court based this
inconsistency on the purported “evidence submitted by plaintiffs [that]
shows … that the availability of affordable and effective contraceptives is of
great importance to the health of women and children because it can help to
prevent a litany of physical, emotional, economic, and social consequences.”
Id. at 1272-73 (citing Sylvia A. Law, Sex Discrimination and Insurance for
Contraception, 73 Wash. L. Rev. 363, 364-68 (1998)). While there may be
some public policy considerations that would encourage employers to
provide coverage for prescription contraceptives, there are even stronger
17
reasons why the types and levels of health insurance coverage, including
prescription coverage that an employer chooses to provide to its employees
and their dependents, should not be mandated. In any event, Congress has
yet to pass legislation requiring employers to provide such coverage, and the
issue deserves a full and fair public debate before mandating such coverage.
A. Any Increase in the Cost of Health Insurance Coverage Resulting from Either Judicial or Legislative Mandates Jeopardizes the Availability and Affordability of Plans to Employers and Their Employees.
Many who support mandating the coverage of prescription
contraceptives argue that the availability of affordable and effective
contraceptives will result in only a fractional increase in health plan
premiums, while “help[ing] to prevent a litany of physical, emotional,
economic, and social consequences.” Erickson, 141 F. Supp.2d at 1272-73.
Actually, the question of cost-benefit balance is far from settled in the
controversy over mandated coverage of prescription contraceptives. Central
to the argument that prevention of pregnancy and pregnancy-related costs
through the use of contraceptives will result in substantial economic savings
and social benefits, is the assumption that, if contraceptives were covered by
insurance, individuals who do not use birth control because of its expense
would begin practicing a covered contraceptive method. However, thus far,
no studies have been conducted exploring the validity of this basic
18
assumption upon which much of the cost-benefit analysis in favor of
contraceptive coverage hinges. See Sarah E. Bycott, Note, Controversy
Aroused: North Carolina Mandates Insurance Coverage of Contraceptives
in the Wake of Viagra, 79 N.C. L. Rev. 779, 784-85 n.32 (March 2001)
(citing Philip R. Lee & Felicia H. Stewart, Editorial, Failing to Prevent
Unintended Pregnancy is Costly, 85 Am. J. Pub. Health 479, 479 (1995)).
On the other hand, evidence does exist to show that the growing cost
of health insurance is a real concern to employers and their employees. The
2001 annual survey of employer health benefits conducted by the Kaiser
Family Foundation (Kaiser) and the Health Research and Educational Trust
(HRET) reported that job-based health insurance costs increased by 11.0
percent from the spring of 2000 to the spring of 2001, the highest increase
since 1992 and the fifth straight year of health care inflation. Kaiser/HRET,
Employer Health Benefits: 2001 Annual Survey 1-2 (2001), available at
http://www.kff.org/content/2001/3138/EHB2001_fullrpt.pdf. These rate
increases translate to per-employee health plan costs of $2,650 a year for
single coverage ($221 per month) and $7,053 a year for family coverage
($588 per month). Id. at 1. Small employers were once again the hardest
hit, reporting health plan inflation rates of 14.4 percent (10 to 24 employees)
and 16.5 percent (3 to 9 employees). Id. at 16.
19
In addition, spending for prescription drugs has risen mush faster than
for other types of health care. See Kaiser Prescription Drug Trends: A
Chartbook Update (November 2001), available at
http://www.kff.org/content/2001/3112/RxChartbook.pdf. U.S. spending for
prescription drugs was $99.6 billion in 1999, more than doubling since 1990.
Id. at 5. Although prescription drug spending is a small proportion (10%) of
personal health care spending, it is one of the fastest growing components,
increasing at double-digit rates. Id. National prescription spending has
nearly doubled since 1995, compared to a one-third increase in expenditures
for physician and clinical services and about a one-fifth increase for hospital
care. Id. Moreover, prescription drug costs are the most rapidly increasing
expense for employer-based insurance. For companies that cover
prescription drugs in a separate plan, the cost of prescription drug coverage
rose an average of 15.5 percent in 2001, a rate substantially higher than the
overall employer health plan premium increase of 11.0 percent. Id. at 6.
Employers have absorbed much of the rising cost because the healthy
economy brought in more revenue to pay these expenses and the tight labor
market made the need for comprehensive, low-cost packages necessary to
attract and retrain employees. Employers assumed greater responsibility for
plan premiums from 1993 to 2001 (paying 68 percent of family coverage in
20
1993 and 73 percent in 2001), but rising costs have increased employees’
average monthly contributions from $124 to $150 over the same period of
time. Kaiser/HRET, Employer Health Benefits: 2001 Annual Survey 87
(2001). However, a downturn in the economy makes absorbing these costs
far more difficult.
When employers can no longer keep up with the rising cost of their
health plans, they increase employee cost-sharing in the form of bigger
monthly premiums, larger co-payments for doctor visits and prescription
drugs, and higher out-of-pocket payments toward the deductible and
coinsurance. Among large employers (200 or more employees), 75 percent
are likely to increase employee costs this year, and 42 percent of smaller
employers expect to do so. Id. at 3.
In addition, even as employer coverage has been expanding in recent
years, the number of employees turning down their employers’ offer of
coverage has been steadily increasing. Employee Benefits Research
Institute, EBRI Issue Brief No. 213, Executive Summary, Employment-
Based Health Benefits: Who Is Offered Coverage vs. Who Takes It
(September 1999), available at http://www.ebri.org/ibex/ib213.htm. Many
who turn down health insurance coverage by their employer do so because
they find the coverage just too costly. Id. Any increase in the cost of health
21
insurance coverage by imposing mandates either judicially or legislatively
jeopardizes the availability and affordability of plans to employers and their
employees.
So while some women would gain coverage for contraceptive drugs
under the District Court’s holding, other women and men predictably would
lose their medical insurance entirely and be uninsured when they experience
an illness, are accidentally injured, or require surgery. Employees who
desire more comprehensive coverage for any purpose or condition are in
danger of losing their health benefits altogether because the costs are rising
for their employers and themselves, and insurers faced with rising costs are
withdrawing from the market and leaving consumers with fewer alternatives.
In addition, employers faced with increased premiums and the prospect of
being liable for damages for the actions of the health plans they sponsor may
determine not to provide this employee benefit.
B. In Considering the Issue Before It, This Court Should Also Consider the Broader Impact of Any Decision That Requires Insurance Plans Provide Coverage of Any Prescription, Treatment, or Medical Condition That Is Only Available to or Somehow Unique to One Sex.
Because men and women are biologically different, a wide variety of
physical characteristics, including but not limited to medical conditions, are
unique to one gender or the other. As a result, a significant number of
22
medical treatments are provided only to one gender, because the other
gender does not need them.
Under the convoluted theory adopted by the district court, a limitation
on insurance coverage for treatment of any of these conditions potentially
would violate Title VII, because the affected gender would be deprived of
coverage while the unaffected gender would not. As a few examples,
potential challenges could be brought under this theory to try to force
insurance coverage of:
• surgical contraception such as tubal ligations and vasectomies,
and their reversal;
• in-vitro fertilization, artificial insemination, embryo transfer,
fertility drugs, or any other artificial means of conception;
• treatment for male sexual dysfunction and impotence; and
• prescription coverage for Propecia, a male-pattern baldness
remedy.
This is hardly an exhaustive list, but it demonstrates the issues that
may arise in this debate. In considering the issue before it, this Court should
also consider the broader impact of any decision that requires that insurance
plans provide coverage of any prescription, treatment, or medical condition
that is only available to or somehow unique to one sex. Such a decision has
23
the potential of greatly increasing the cost of employer-provided insurance
coverage.
C. Because the PDA Does Not Mandate That an Employer’s Prescription Plan Cover Contraceptives, if Coverage Is To Be Required, It Is for Congress To Decide.
The instant case involves politically charged issues with far-reaching
social consequences. For these reasons, the proper forum for their
consideration is Congress and not the courts.
Apparently aware that federal law does not currently mandate that an
employer’s prescription plan cover contraceptives, legislators have proposed
the federal Equity in Prescription Insurance and Contraceptive Coverage Act
(EPICC) in both the Senate and the House of Representatives. S. 104, 107th
Cong. (2001); H.R. 1111, 107th Cong. (2001). Both bills would require
coverage of prescription contraceptive drugs and devices and contraceptive
services under health plans. Specifically, under the bill, a group health plan,
and a health issuer providing health insurance coverage in connection with a
group health plan, may not—
(1) exclude or restrict benefits for prescription contraceptive
drugs or devices approved by the Food and Drug
Administration, or generic equivalents approved as
substitutable by the Food and Drug Administration, if such
24
plan provides benefits for other outpatient prescription
drugs or devices; or
(2) exclude or restrict benefits for outpatient contraceptive
services if such plan provides benefits for other outpatient
services provided by a health care professional . . . .
Id.
In addition, a number of state legislatures have addressed the issue of
contraceptive coverage. On April 28, 1998, Maryland became the first state
to require private-sector insurance policies to cover contraceptive drugs or
devices if they cover prescription drugs. See Md. Code Ann., Ins. § 15-826.
Since then, at least 19 states have passed legislation related to insurance
coverage for contraceptives. For a listing of these states, see National
Conference of State Legislatures, Women’s Health Insurance Coverage for
Contraceptives (December 2001), available at
http://www.ncsl.org/programs/health/contrace.htm in the Public User
section. Indeed, contraceptive issues are a hot topic of debate in Congress
and state legislatures across the country.
The legislative debate illustrates not only the understanding that the
PDA does not address prescription contraceptives but also that―even where
25
there appears to be consensus that coverage of prescription contraceptives
should be mandated―the scope of this mandate may still not be clear.
One common skirmish in these debates has been from abortion
opponents. Preven™, a drug that prevents the implantation of any fertilized
egg, occupies one of the grayer areas in the reproductive rights controversy.
See generally Bycott, supra, at 806-07. Some religious conservatives view
Preven™ as another permutation of abortion inducement, similar to RU-486,
which is also approved by the Food and Drug Administration but clearly
terminates an already-existing pregnancy.4 Id. Thus, even in states where
mandating legislation has been enacted, insureds may encounter difficulty in
seeking coverage for Preven™, depending on how the applicable statute of
the state is construed.5
4 On July 16, 1998, the House of Representatives, as an amendment to a FY1999 appropriations bill offered by Rep. Nita Lowey (D-NY), voted to require health insurance companies covering federal employees to provide contraceptives along with other prescriptions. 144 Cong. Rec. H5718 (daily ed. July 16, 1998). An additional amendment offered by Rep. Chris Smith (R-NJ) sought to exclude “coverage for abortifacients,” including intrauterine devices (IUDs) and ECPs on the grounds that they sometimes act to prevent implantation of a fertilized egg. 144 Cong. Rec. H5721 (daily ed. July 16, 1998). The amendment was defeated 222-198, but illustrates the difficulty in reaching consensus on such highly controversial issues. 5 North Carolina avoids this issue of construction altogether by providing clear language against the coverage of Preven™. N.C. Gen. Stat. 58-3-178(c)(4)(b). However, most other state-enacted bills on contraception
26
In addition, states enacting contraceptive legislation have addressed
the issue of whether individuals, health care facilities, employers, or, in
some cases, health plans can decline to provide services to which they have
a religious, ethical, or moral objection.6 The question of which employers, if
any, may object to contraceptive coverage for their employees adds yet
another dimension to an already complex situation. Clearly, these are
questions not for the courts but for our elected officials to decide after
engaging in a thorough debate of the difficult issues. See The Lottawanna,
88 U.S. 558, 576-77 (1874) ("[W]e must always remember that the court
cannot make the law . . . . If any change is desired in [a law], . . . it must be
made by the legislative department").
coverage have not addressed the issue of whether Preven™ is a covered prescription. 6 For example the contraceptive coverage law enacted in Maryland contains a conscience clause allowing religious organizations to obtain an exemption from the law’s requirements, if covering contraceptives services under the insurance policy they provide for their employees “conflicts with the religious organization’s bona fide religious beliefs and practices.” See Md. Code Ann., Ins. § 15-826. However, not all states that have enacted bills on contraception coverage have included a “conscience” clause.
27
CONCLUSION
For the foregoing reasons, amicus curiae Equal Employment
Advisory Council respectfully submits that the decision below should be
reversed.
Respectfully submitted,
February 4, 2002 ____________________________________ Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W., Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae
EQUAL EMPLOYMENT ADVISORY COUNCIL
CERTIFICATE OF COMPLIANCE PURSUANT TO FED R. APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR CASE NO. 01-35870
I certify that: ___ Amicus Briefs
Pursant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached ڤ
amicus brief is proportionally spaced, has a typeface of 14 points or
more and contains 7000 words or less,
or is
Monospaced, has 10.5 or fewer characters per inch and contains not ڤ
more than either 7000 words or 650 lines of text,
or is
Not subject to the type-volume limitations because it is an amicus ڤ
brief of no more than 15 pages and complies with Fed. R. App. P.
32(a)(1)(5).
______________ ____________________________________ Date Signature of Attorney or Unrepresented Litigant
CERTIFICATE OF SERVICE
This is to certify that two true and correct copies of the Brief of the
Equal Employment Advisory Council as Amicus Curiae in Support of
Defendant-Appellee and in Support of Reversal were served today on the
following counsel via U.S. Mail, first class, postage prepaid, addressed as
follows:
Lynn Sarko KELLER ROHRBACK 1201 Third Avenue Suite 3200 Seattle, WA 98101 Roberta N. Riley PLANNED PARENTHOOD OF WESTERN WASHINGTON 2001 East Madison Seattle, WA 98122-2959 Eve C. Garner PLANNED PARENTHOOD FEDERATION OF AMERICA, INC. 810 Seventh Avenue New York, NY 10019 James R. Dickens Michelle Valier MILLER NASH, LLP 4400 Two Union Square 601 Union Street Seattle, WA 98101-2352
Barbara T. Lindeman David D. Kadue SEYFARTH SHAW, LLP One Century Plaza 2029 Century Park East, Suite 3300 Los Angeles, CA 90067-3063
February 4, 2002 ____________________________________ Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W., Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL
Areesman M:\1013\1352\brief\Bartells brief2.doc