By Cynthia L. Cooper
Friday, September 7, 2001
Momentum is building for coverage of birth control: Union leaders are putting contraceptive equity on the bargaining table and winning, while the Senate opens the first congressional hearings on contraceptive equity since 1998. Second of two parts.
(WOMENSENEWS)--Employees are demanding and winning contraceptive equity and insurance coverage of birth control not only through legislation and court action, but also through collective bargaining.
On Sept. 10, the education and labor committee of the U.S. Senate, chaired by Sen. Edward M. Kennedy, D-Mass., will hold hearings on federal contraceptive equity legislation. One witness is expected to be Jennifer Erickson, the plaintiff in a landmark contraceptive equity case.
And in less than six months of operation, the Contraceptive Equity Project in Washington, D.C., is telling success stories. Sponsored by the national Coalition of Labor Union Women, the project encourages collective bargaining as a means to securing contraceptive coverage in prescription benefit plans.
One good news report from a local in Alabama was sent to project Director Carolyn Jacobson last month: The management of a uniform supply company initially rebuffed contraceptive coverage for its hundreds of employees, but the union learned that Viagra, the male impotence drug, was covered.
"If you can pay to crank it up, you'd better pay for the consequences," the negotiator announced. Contraceptive coverage was added.
"The potential in getting contraceptive coverage through the unions is huge," said Jacobson. Unions, which also provide benefits to spouses, claim 16 million members, of which 5.5 million are women. "It seems so obvious to me. But this hasn't been on their radar screens," said Jacobson.
In June, the International Brotherhood of Teamsters, a massive 1.4 million-member union known best for representing truck drivers, passed a breakthrough contraceptive equity resolution at its annual conference in Las Vegas. It called for negotiators on upcoming national contracts with parcel delivery services, car haulers and freight delivery services to seek equitable health care coverage that includes reproductive health products, exams and services.
The American Federation of State, County and Municipal Employees became the first union to step forward on contraceptive equity, developing an action program shortly after the Coalition of Labor Union Women passed its contraceptive equity resolution in 1997. At its forthcoming October convention in Las Vegas, the coalition will feature a workshop: "Achieving Contraceptive Equity in Union Health Plans."
Two legal decisions in the past nine months have greatly enhanced the arguments of contraceptive equity proposals. Both held that employees are entitled to contraceptive benefits under federal laws that prohibit sex discrimination.
On June 12, Judge Robert Lasnick of the federal district court in Washington state ruled in favor of Erickson, currently expected to appear before the Senate Monday. She had sued her employer, Bartell Drug Company, because it would not pay for her birth control pills. Judge Lasnick found that the failure to provide contraceptive coverage violated Title VII of the federal Civil Rights Act of 1964. Exclusion of prescription contraceptives "creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health need uncovered," Judge Lasnick wrote in his opinion.
On Aug. 28, Bartell appealed to the Ninth Circuit U.S. Court of Appeals, with lawyers for Erickson submitting their response yesterday, Sept. 6.
In December 2000, the Equal Employment Opportunity Commission made the first decision on contraceptive coverage, agreeing with two nurses who complained that their employers illegally discriminated against them by refusing to cover their contraception.
The Equal Employment Opportunity Commission said that the 1978 Pregnancy Discrimination Act, which amended Title VII, prevents employers from discriminating against women who want to control their fertility. The commission ordered the employers to pay damages and provide full coverage for all prescription contraceptives to the same extent that other prescriptions are covered.
In theory, all employers who provide prescription drug benefits and have more than 15 employees are subject to that December decision by the Equal Employment Opportunity Commission. But enforcement of the rules depends largely on voluntary compliance, said Linda Rosenthal, an attorney with the Center for Reproductive Law and Policy.
"The EEOC can't be in every employer's workplace," she said. "Until contraceptive equity becomes par for the course, there is still work that needs to be done, including educating employers."
Broader protection would be provided by the Equity in Prescription Insurance and Contraceptive Coverage Act, or EPICC, introduced by Republican Sen. Olympia J. Snowe of Maine and Democratic Sen. Harry Reid of Nevada.
First proposed in 1997, federal contraceptive equity, if passed, would apply to all employers across the nation, including self-insured companies, which are not controlled by state law. To date, 16 states have passed contraceptive equity laws. It would also cover insurers, not covered by the decision by the Equal Employment Opportunity Commission.
The Sept. 10 Senate hearings will be the first congressional session on contraceptive equity since 1998, according to Sen. Snowe's spokesperson, Dave Lackey.
Success in achieving contraceptive equity has also encountered a backlash, in no small part, from the policies of President George W. Bush, who is anti-choice.
Although he has not taken a public position on the contraceptive equity bill, or EPICC, President Bush opposed contraceptive coverage for federal employees, first approved by Congress in 1999, eliminating it in his proposed budget.
Congress restored the funding in a key appropriations committee vote in July, 40-21, on an amendment sponsored by Democratic Rep. Nita Lowey of New York. After the House of Representatives overwhelmingly passed the amended appropriations bill on July 25 by 334-94, the Bush administration announced that it would no longer object to the wording.
Over 1.2 million women are enrolled in the Federal Employees Health Benefits Program. Women's health advocates have considered federal employee coverage a first step toward universal coverage.
Public support for contraceptive benefits is strong. A Kaiser Family Foundation survey found that approximately three-quarters of Americans agreed that insurance should cover contraception, with 78 percent of women expressing support and 66 percent of men.
Buoyed by public enthusiasm, some activists are turning their attention to grassroots efforts.
Planned Parenthood of Washington, which handled the Bartell case, developed a campaign along with the Planned Parenthood Federation of America, called Cover My Pills. It uses a Web site to encourage individual activism, including information backup and sample requests to employers.
Cynthia L. Cooper is a New York-based free-lance writer specializing in reproductive health issues.
Coalition of Labor Union Women--Actions on Health Care Equity:
Cover My Pills campaign:
National Women's Law Center, Pill4US campaign:
Planned Parenthood Federation of America--EPICC information:
Center for Reproductive Law and Policy--Contraceptive equity information:
The Alan Guttmacher Institute:
National Abortion and Reproductive Rights Action League: