Equity in Prescription Insurance and Contraceptive Coverage

Nearly half of all pregnancies in the United States are unintended, and nearly 40 percent of all unintended pregnancies end in abortion (Guttmacher Institute, 2006b).  Contraceptives have a proven track record of enhancing the health of women and children, preventing unintended pregnancy, and reducing the need for abortion.  However, although contraception is part of basic health care for women — more than 38 million U.S. women are currently using birth control, and 98 percent of U.S. women who have ever had intercourse have used at least one contraceptive method —, far too many insurance policies exclude this vital coverage (Guttmacher Institute, 2006a).

The most recent employer-based studies indicate that only 72 percent of employer health plans cover all methods of prescription contraception approved by the U.S. Food and Drug Administration (FDA) (KFF, 2003).  Although 89 percent of employer health plans cover oral contraceptives (OCs), OCs are not the optimal method of contraception for many women (KFF, 2004).  Unless women are able to choose from the full range of FDA-approved methods, some women will be at higher risk for unintended pregnancy or for undesirable side effects or complications.  The fact that many women of childbearing age do not have insurance coverage for contraception — or do not have insurance coverage for the optimal method of contraception for them — is costly, both for insurers who may have to pay for either maternity care or abortion and for the families whose physical and financial well-being is threatened by unintended pregnancy — because they lack access to equitable coverage for contraceptives.

While the increases in insurance coverage for contraception over the last decade are promising, it is imperative that all women have this important benefit.

In Congress

In 1998, PPFA^® won a major legislative victory with the enactment of a contraceptive coverage requirement in the Federal Employees Health Benefits Program (FEHB).  The provision guarantees coverage of prescription contraceptive drugs and devices for all employees of the federal government — one of the largest employers in the U.S. — by all plans participating in the FEHB program that cover other prescription drugs and devices.  Contraceptive coverage for federal employees continues to be provided in the FEHB program (Dailard, 2003; NFPRHA, 2006; NWLC, 2006).

The Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) was first introduced in 1997 by Senator Olympia Snowe (R-ME) and Representative James Greenwood (R-PA) to provide equity in insurance coverage for contraception in the private market.  The bill sought to establish parity for contraceptive prescriptions and related medical services within the context of coverage already guaranteed by each insurance plan.

Under this legislation, plans already covering prescription drugs and devices would include equivalent coverage for prescription contraceptive drugs and devices.  Also, plans that included coverage for outpatient medical services would include outpatient contraceptive services in that coverage.  The bill defined contraceptive services as “consultations, examinations, procedures, and medical services, provided on an outpatient basis and related to the use of contraceptive methods (including natural family planning) to prevent an unintended pregnancy” (H.R. 2174, 1997; S. 743, 1997; S. 766, 1997).

EPICC was reintroduced in 1999, 2001, 2003, and 2005.  In 2007, it was reintroduced as part of the Prevention First Act.  A combination of eight separate bills, the Prevention First Act of 2007 would

• require all health plans to cover FDA-approved prescription contraceptives and related medical services
• expand access to preventive reproductive health care services and education programs
• increase access to family planning services
• prevent the spread of sexually transmitted infections (STIs)
• give women the tools they need to make the best decisions possible for themselves
  (CRR, 2005; H.R. 819, 2007; S. 21, 2007).
  

In the States

Twenty-three states — Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Vermont, Washington, and West Virginia — have enacted contraceptive equity laws or regulations that are currently in effect.  Other states have partial mandates that apply to only some insurers or some segments of the insurance market.  And both Texas and Virginia require that employers offer the option to include contraceptive coverage within their health plans. (CRR, 2006; Dailard, 2004; Guttmacher Institute, 2007; NCSL, 2007).  Unfortunately, 18 of these states include refusal clauses — allowing insurers and employers to deny coverage for religious or “moral” reasons (Guttmacher Institute, 2007).

In addition, the state Attorneys General in Montana and Wisconsin have issued opinions that state law requires contraceptive coverage.  Likewise, the Michigan Civil Rights Commission has ruled that employers who exclude prescription contraceptives from their health plans — when other prescription drugs and devices are covered — violate the prohibition against sex discrimination in Michigan's Elliot-Larsen Civil Rights Act (Elliot-Larsen Civil Rights Act of 1976, 1977; Guttmacher Institute, 2007).

So far, in the 2007 legislative session, eight states have introduced contraceptive equity bills (PPFA, n.d.).  The bills introduced in two of these eight states seek to either clarify the legislation — New York — or codify an administrative ruling into law — Michigan (MCRC, 2006; Northey, 2007; Unintended Pregnancy Prevention Act, 2007).

Even though we have made great strides through state legislation, federal legislation is still needed in order to provide contraceptive coverage to women who have self-insured health policies.  These policies are governed by the Employee Retirement and Income Security Act (ERISA) — a federal law that exempts them from state law requirements (KFF, 2000; NFPRHA, 2006).

In the Courts

On June 12, 2001, a federal district court in Seattle ruled in the case of Erickson v. Bartell Drug Company that an employer’s exclusion of prescription drugs and devices in an otherwise comprehensive prescription drug plan is sex discrimination in violation of Title VII of the Civil Rights Act of 1964 — an act that prohibits employment discrimination on the basis of race, color, religion, sex, or nationality — and the Pregnancy Discrimination Act of 1978 — an amendment to Title VII that prohibits employment discrimination on the basis of pregnancy, childbirth, or related medical conditions (DOL, 2007; EEOC, 2004; Erickson v. Bartell Drug Company, 2001; NWLC, 2006).

The Erickson decision was based in part on a Commission Decision issued by the U.S. Equal Employment Opportunity Commission (EEOC) on December 14, 2000.  The EEOC found that an employer’s failure to provide insurance coverage for prescription contraceptives, when it covers other prescription drugs and devices used to prevent illness or disease, constitutes unlawful sex discrimination under Title VII.  The EEOC noted that in order to avoid Title VII violations in the future, employers must

• cover the expenses of prescription contraceptives to the same extent and on the same terms that they cover the expenses of other prescription drugs and devices used for preventive care
• offer the same coverage for contraception-related outpatient services as are offered for other outpatient services
• cover the "full range" of prescription contraceptive choices
• include such coverage in each of the health plans offered to their employees
  (EEOC, 2000).

Because the EEOC is the federal agency charged with enforcing and interpreting Title VII, the EEOC's Commission Decision serves notice regarding the legal obligation for contraceptive coverage by all employers covered by Title VII — those with 15 or more employees (Cohen, 2001).

In a step backward for women’s health, the EEOC’s rationale was challenged by the U.S. Court of Appeals for the Eight Circuit in its March 15, 2007 decision In re Union Pacific Railroad Employment Practices Litigation v. Standridge.  The court ruled two to one that it is not discrimination within the meaning of Title VII for an employer health plan to exclude coverage for prescription contraception, even if it covers other preventive prescription drugs and devices (Funk, 2007; In re Union Pacific Railroad Employment Practices Litigation v. Standridge, 2007; Lewin, 2007).

Contraception is basic health care for women, and a critical contributor to improved maternal and child health.

• Ready access to contraceptive-related health services increases the likelihood that the estimated 19 million Americans who contract STIs each year will be diagnosed and treated (Weinstock et al., 2004).

• As they help women avoid unplanned pregnancies, contraceptive services help women plan pregnancies. A study of 45,000 women suggests that women who used family planning services in the two years before conception were more likely than women who had not used such services to receive early and adequate prenatal care (Jamieson & Buescher, 1992).

• The National Commission to Prevent Infant Mortality estimated that 10 percent of infant deaths could be prevented if all pregnancies were planned — in 2003 alone, nearly 3,000 infant lives could have been saved (HHS, 2005; NCPIM, 1990).
  

 The costs associated with contraceptive coverage are minimal, while the potential savings are great.

• Cost analyses have shown that if health insurance policies that do not currently provide contraceptive coverage were to include coverage for these contraceptive supplies, costs to employers would be minimal — as little as $1.43 per employee per month (Darroch, 1998).  Costs would be less for plans that currently cover one or more contraceptive method.

• In 2001, the Office of Personnel Management — the administrators of the FEHB program — reported that the inclusion of contraceptive coverage does not add additional costs to the program’s premiums (Lachance, 2001; NFPRHA, 2006).

• Not covering the cost of contraceptives increases the likelihood of unintended pregnancy and all direct and indirect costs associated with that pregnancy — a 15–17 percent potential increase in employer health plan costs (Bonoan & Gonen, 2000; Dailard, 2003; NJPRHA, 2006).

The correlation is clear. Contraception prevents unintended pregnancy, helps women plan their pregnancies, and reduces the need for abortion.

• In any single year, 85 out of 100 sexually active women of reproductive age not using a contraceptive method become pregnant. In contrast, of 100 oral contraceptive users, only between 0.3 and eight percent become pregnant during the first year of use (Trussell, 2004).

• Because the likelihood of pregnancy is so great when contraception is not used, 52 percent of all unintended pregnancies in the U.S. occur among the 11 percent of fertile women who use no method and leave pregnancy to chance (Boonstra et al., 2006).

• Reducing unintended pregnancy is key to reducing the number of abortions — more than half of unintended pregnancies end in abortion (Guttmacher Institute, 2006b).
  

For all of these compelling reasons, Planned Parenthood^® advocates the adoption of the Equity in Prescription Insurance and Contraceptive Coverage Act.

For More Information:

Cover My Pills: Fair Access to Contraception
http://www.covermypills.org/

Cited References

Bonoan, Rowena & Julianna S. Gonen.  (2000).  Promoting Healthy Pregnancies:  Counseling and Contraception as the First Step.  Washington, DC:  Washington Business Group on Health.

Boonstra, Heather, et al.  (2006).  Abortion In Women’s Lives.  New York:  Guttmacher Institute.

Cohen, Susan.  (2001).  “Federal Law Urged as Culmination of Contraceptive Insurance Coverage Campaign.”  The Guttmacher Report of Public Policy, 4(5), 10–2.

CRR — Center for Reproductive Rights.  (2005, August 1, accessed 2007, March 23).  “Contraceptive Coverage for All:  EPICC Act is Prescription for Women’s Equality.”  [Online].  http://www.reproductiverights.org/pub_fac_epicc.html.

_____.  (2006, January 4, accessed 2007, March 20).  “Contraceptive Equity Laws in the States:  A Look at Contraceptive Equity Laws Around the Country.”  [Online].  http://www.reproductiverights.org/tools/print_page.jsp.

Dailard, Cynthia.  (2003, March).  "The Cost of Contraceptive Insurance Coverage."  The Guttmacher Report on Public Policy, 6(1), 12–3.

_____.  (2004, June).  “Contraceptive Coverage:  A 10-Year Retrospective.”  The Guttmacher Report on Public Policy, 7(2), 6–9.

Darroch, Jacqueline.  (1998).  Cost to Employer Health Plans of Covering Contraceptives.  New York:  The Alan Guttmacher Institute.

DOL — U.S. Department of Labor, Civil Rights Center.  (2007, accessed March 23).  Title VII, Civil Rights Act of 1964, As Amended.  [Online].  http://www.dol.gov/oasam/programs/crc/2000e-16.htm.

EEOC — Equal Employment Opportunity Commission. (2000, December 14, accessed 2002, April 4). "Decision on Coverage of Contraception." [Online]. http://www.eeoc.gov/docs/decision-contraception.html.

_____.  (2004, January 15, accessed 2007, March 23).  “Facts About Pregnancy Discrimination.”  [Online].  http://www.eeoc.gov/facts/fs-preg.html.

Elliot-Larsen Civil Rights Act of 1976, codified at Mich. Comp. Laws § 37.2101.  (1977, January 13, accessed 2007, April 17).  [Online].  http://www.michigan.gov/documents/act_453_elliot_larsen_8772_7.pdf.

Equity in Prescription Insurance and Contraceptive Coverage Act of 1997, H.R. 2174; S. 743; S. 766, 105^th Cong., 1^st Sess.  (1997).

Erickson v. Bartell Drug Company, 141 F. Supp. 2d 1266 (W.D. Wash. 2001).

Funk, Josh.  (2007, March 15).  “Appeals Court Rules UP Doesn’t Have to Cover Contraceptives.”  Associated Press.

Guttmacher Institute.  (2006a, January, accessed 2007, March 23).  Facts in Brief:  Contraceptive Use.  [Online].  http://www.guttmacher.org/pubs/fb_contr_use.pdf.

_____.  (2006b, June, accessed 2007, March 19).  In Brief:  Facts on Induced Abortion In the United States.  [Online].  http://www.guttmacher.org/pubs/fb_induced_abortion.pdf.

_____.  (2007, March 1, accessed March 20).  State Policy in Brief:  Insurance Coverage of Contraceptives.  [Online].  http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf.

HHS — U.S. Department of Health and Human Services, Health Resources and Services Administration, Maternal and Child Health Bureau.  (2005).  Child Health USA 2005.  Rockville, MD:  U.S. Department of Health and Human Services.

In re Union Pacific Railroad Employment Practices Litigation v. Standridge, 479 F.3d 936 (8^th Cir. 2007).

Jamieson, Denise J. & Paul A. Buescher.  (1992).  “The Effect of Family Planning Participation on Prenatal Care Use and Low Birth Weight.”  Family Planning Perspectives, 24(5), 214–8.

KFF — Kaiser Family Foundation.   (2000, December, accessed 2007, March 21).  Issue Brief:  State Policies on Access to Gynecological Care and Contraception.  [Online].  http://www.kff.org/womenshealth/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=13346.

KFF & HRET — Health Research & Educational Trust.  (2003, accessed 2007, March 20).  Employer Health Benefits:  2003 Annual Survey.  [Online].  http://www.kff.org/insurance/upload/Kaiser-Family-Foundation-2003-Employer-Health-Benefits-Survey-Full-Report.pdf.

_____.  (2004, accessed 2007, March 20).  Employer Health Benefits:  2004 Annual Survey.  [Online].  http://www.kff.org/insurance/7148/upload/2004-Employer-Health-Benefits-Survey-Full-Report.pdf.

Lachance, Janice.  (2001, January 16).  Letter from the Director of the Office of Personnel Management to Marcia Greenberger, Co-President, National Women’s Law Center.

Lewin, Tamar.  (2007, March 17).  “Court Says Health Coverage May Bar Birth-Control Pills.”  The New York Times.

MCRC — Michigan Civil Rights Commission.  (2006, August 21, accessed 2007, March 21).  Michigan Civil Rights Commission Declaratory Ruling on Contraceptive Equity.  [Online].  http://www.michigan.gov/documents/Declaratory_Ruling_7-26-06_169371_7.pdf.

NCPIM — National Commission to Prevent Infant Mortality.  (1990).  Troubling Trends:  The Health of America’s Next Generation.  Washington, DC:  National Commission to Prevent Infant Mortality.

NCSL — National Conference of State Legislatures.  (2007, January, accessed 2007, March 20).  “50 State Summary of Contraceptive Laws.”  [Online].  http://www.ncsl.org/programs/health/contraceplaws.htm.

NFPRHA — National Family Planning & Reproductive Health Association.  (2006, March, accessed 2007, March 21).  Support the Equity in Prescription Insurance and Contraceptive Coverage Act:  Stop Health Insurance Discrimination Against Women.  [Online].  http://www.nfprha.org/atf/cf/%7BC342E09A-9DD8-4743-8E8C-EBDC304DF4B8%7D/EPPICMarch2006FINAL.pdf.

Northey, Hannah.  (2007, March 3, accessed 2007, March 21).  “Bill Calls for Insurers to Fund Contraceptives.”  Lansing State Journal.  [Online].  http://www.lsj.com/apps/pbcs.dll/article?AID=/20070303/NEWS04/703030329/1005/news04.

NWLC — National Women’s Law Center.  (2006, September).  Contraceptive Coverage:  A Multi-Track Approach.  Washington, DC:  National Women’s Law Center.

PPFA — Planned Parenthood Federation of America.  (n.d.)  Internal Communication.

Prevention First Act of 2007, H.R. 819; S. 21, 110^th Cong., 1^st Sess.  (2007).

Trussell, James.  (2004).  "The Essentials of Contraception:  Efficacy, Safety, and Personal Considerations."  Pp. 221–52 in Robert A. Hatcher et al., eds., Contraceptive Technology, 18^th Revised Edition.  New York:  Ardent Media, Inc.

Unintended Pregnancy Prevention Act, SO3579, New York State Assembly 2007–2008 Regular Session.  (2007, March 9, accessed 2007, March 21).  [Online].  http://assembly.state.ny.us/leg/?bn=S03579&sh=t.

Weinstock, Hillard, et al.  (2004).  “Sexually Transmitted Diseases Among American Youth:  Incidence and Prevalence Estimates, 2000.”  Perspectives on Sexual and Reproductive Health, 36(1), 6–10.

Lead Authors — Deborah Golub, MPH and Eve C. Gartner, Deputy Director, Public Policy Litigation and Law 

Published: 05.01.02 | Updated: 04.17.07

Published by the Katharine Dexter McCormick Library

©2007 Planned Parenthood^® Federation of America, Inc.
All rights reserved.


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