By Cynthia L. Cooper
Monday, July 1, 2002
Several new court cases, equal employment complaints actions and new laws add fuel to the ongoing battle for women seeking insurance coverage for contraception.
(WOMENSENEWS)--Amanda Mewborn, a single mother, earns $8 an hour as a cashier at a CVS drugstore in Georgia, and paying $32.41 a month for birth control is a stretch. Although her employer fills more prescriptions than any other pharmacy chain in the country, its employee insurance plan does not cover prescription contraceptives. Mewborn is now one of a growing number of women who are taking their employers to court over the practice.
In January, lawyers for Mewborn filed a case in federal district court in Atlanta seeking to require birth control coverage by CVS Corporation, which operates 4,175 stores across the country. If her effort to represent the class of approximately 30,000 eligible women employees succeeds, CVS could be required to pay as much as $38 million in back damages, according to Larry Pankey, a lawyer in Atlanta representing Mewborn. CVS, which denied liability in court pleadings filed June 3, did not return calls for comment.
Mewborn is not the only woman challenging unfair contraceptive coverage. In a new turn in the contraceptive equity movement, women are going to court to argue that the failure of employers to cover the cost of prescriptions for contraception in health insurance plans is a form of unfair sex discrimination. Three cases are in the courts, and at least five claims are pending at the U.S. Equal Employment Opportunity Commission, a first step to litigation. Other strategies, including direct appeals to employers, union negotiations and state laws passed in 20 states, are also ongoing to secure birth control coverage.
"A lot of women really care about this and are upset," said Dina Lassow, a senior lawyer at the National Women's Law Center. "For women at the lower end of the wage scale, it's a major economic issue."
Two precedents in the past 18 months are helping women like Mewborn make their case. In 2000, the Equal Employment Opportunity Commission ruled in favor of two nurses who charged that their employers were violating the law against sex discrimination in failing to cover contraceptive prescriptions when other prescriptions were covered.
In June 2001, a federal district court in Washington state ruled in favor of Jennifer Erickson, who charged that her employer, Bartell Drug Company, acted discriminatorily when it failed to pay for the birth control pills. Bartell is appealing the decision to the 9th U.S. Circuit Court of Appeals.
Now women are taking on other companies. Lisa Smith Mauldin, an evening-shift customer service manager earning $20,000 annually, sued Wal-Mart Stores, Inc. for failing to provide contraceptive coverage. Wal-Mart, the world's largest retailer and No. 1 on the Fortune 500 list of the biggest corporations, has 1.3 million employees. The lawsuit, filed in federal district court in Atlanta in October, seeks to represent all affected female employees of Wal-Mart. The Wal-Mart policy, said Lasson, excludes care for impotence, infertility, birth control pills or any injectable contraceptives, sterilization, in vitro fertilization, as well as wellness care and health check-ups. Because some preventive medical care is provided, including mammograms, Pap smears and blood pressure medication, Lasson believes that the failure to cover preventive birth control discriminates against women. Wal-Mart lawyers had no comment.
Other women have filed complaints with the Equal Employment Opportunity Commission for their employers' failure to cover contraceptives. The commission has six months to review claims before deciding whether to issue a "right to sue" letter that can lead to a lawsuit. Commission spokesman David Grinberg said that cases on contraceptive coverage are not tracked separately, so he cannot say how many have been filed.
One discrimination claim was filed with the commission in April by three women journalists, one from The Wall Street Journal and two from SmartMoney Magazine, against their parent company, Dow Jones and Company, Inc. The employees' union had asked the company to provide unconditional prescription birth control coverage over a year ago.
"They've never given a formal response why Dow Jones couldn't add coverage. That's why they decided to file," said Donna Lee, a lawyer with Planned Parenthood Federation of America, Inc., which is representing the women along with a private law firm.
Steve Goldstein, a spokesman for Dow Jones and Company, said that the company has several medical plans and contraceptive coverage is available in them. "All plans provide contraceptive coverage for medical reasons. Some provide for voluntary contraception. It's up to every employee to decide what plan best fits their needs," Goldstein said.
Planned Parenthood also filed a claim for contraceptive coverage at the commission in April on behalf of an employee of the small New York book publisher Kensington Books. Kensington declined comment.
Lee said Planned Parenthood is assisting women in "few" other cases filed with the Equal Employment Opportunity Commission, but she would provide no further details.
Some companies, however, are making arrangements to add birth control without waiting for a lawsuit. In June, DaimlerChrysler Corporation expanded contraceptive coverage for its employees after negotiations with the United Auto Workers union. Temple University in Philadelphia also added prescriptive contraceptives to its coverage as of June 1. And The Associated Press, which previously covered the male impotence drug Viagra, will add complete contraceptive coverage to union health plans beginning next January as part of an effort to resolve a grievance filed by the Wire Service Guild.
Other women tell "victory" stories of securing coverage on a Web site set up by Planned Parenthood.
"I took the initiative," wrote one woman. "After only one month, (our human resources department) e-mailed to inform me that coverage would be included!"
In 20 states, legislation has been passed requiring insurers or employers to provide prescription contraceptives when other prescriptions are covered. Three states--Arizona, Massachusetts and New York--passed laws on the issue this year.
In July, a key Senate committee will vote on the Equity in Prescription Insurance and Contraceptive Coverage, proposed by Republican Sen. Olympia J. Snowe of Maine. The legislation would fill in gaps in other laws, requiring all health insurance plans and employers to cover contraceptives equally with other prescriptions. Snowe first introduced the legislation in 1997 yet said she is optimistic that it will succeed in the Senate this year.
Cynthia L. Cooper is a freelance writer in New York who frequently writes about reproductive rights.
Cover My Pills:
National Women's Law Center/Pill4US Campaign:
Also see Women's Enews, September 7, 2001: Unions, Congress Consider Contraceptive Equity: