Covering Birth Control
Sept. 4, 2000 — When Seattle pharmacist Jennifer Erickson returned to work
in late July one day after filing a lawsuit against her
employer, the Bartell Drug Co., her female co-workers were ecstatic. “It
was all high fives and ‘You go, girl!’ ” Erickson says with a laugh. Her
customers thanked her. Strangers who recognized her from interviews in the
local and national media stopped her on the street.
So why is this 26-year old suing her own employer — and getting so much
attention and support from her co-workers and customers? Erickson is
challenging one of the longest-standing disparities in medicine. She thinks
it’s wrong that the health insurance plans offered by so many companies across
the country provide coverage for drugs like Viagra for men but don’t cover
birth control pills and other contraceptives. And she thinks changes are long
overdue.
To try to close this gender gap, Erickson volunteered to be the lead
plaintiff in a class action lawsuit filed last month by Planned Parenthood –
the first case ever seeking to force an employer to include contraceptives in
its health plan. While the lawsuit targets only Bartell, it could pave the way
for similar suits against every company in the United States that provides
similar prescription coverage to its employees but fails to cover
contraceptives.
“This problem affects millions of women all over the country,” says
Sylvia A. Law, a law professor at New York University. “Yet it’s the first
time the issue has ever been addressed in a court — and it’s high time.”
Law was the first to argue in a 1998 Washington Law Review article that
excluding contraceptives from prescription coverage illegally discriminates
against women under Title VII of the federal Civil Rights Act.
Three-quarters of American women of childbearing age rely on
employer-sponsored plans for their health coverage, according to the Alan
Guttmacher Institute, a research group that works to broaden access to family
planning services. Yet half of all large plans do not cover any
form of prescription contraception, and only a third cover the Pill. While most
HMOs do cover oral contraception, only about 40% cover all five of the
FDA-approved prescription birth control methods available in this country.
Erickson’s lawsuit aims to assist working women like herself — those who
are neither rich enough to easily pay for contraceptives themselves nor poor
enough to qualify for help from the government. And while the young newlywed is
new to activism, the role of crusader for women’s rights seems to be coming
quite naturally. “I’m very outgoing and outspoken,” Erickson says.
“It’s easy for me to say, ‘This is wrong, fix it.’”
Bartell has yet to file a response to the suit, but in a press statement the
company defended its policy as “lawful and nondiscriminatory,” noting
that “no medical benefits program covers every possible cost.” Company
officials have not spoken with Erickson about the lawsuit. She says her working
environment has remained friendly.
Erickson, who grew up in Lafayette, Ind., moved to Seattle in 1999. She has
worked for Bartell for 18 months and was recently promoted to pharmacy manager.
She says she loves her job and considers Bartell — which operates a chain of
45 drugstores in Washington — a progressive workplace. But she hates telling
customers that their health plans don’t cover the contraceptives they need.
Even more, she hates watching them turn away angrily.
“One woman recently said to me, ‘I have to make rent this month, I have
five kids to feed, I can’t afford to pay for birth control pills,’ ”
Erickson says. “I want to say to her, ‘Don’t leave without these!’ I feel
so bad.”
But Erickson’s efforts aren’t simply aimed at helping others. The fact that
her own company’s insurance plan doesn’t cover contraceptives forces Erickson
– who says she’s not ready to have children — to pay $360 a year
out-of-pocket for birth control pills.
While she can afford this expense, she thinks it’s unfair that she has to.
And there were times in the past when she couldn’t. Like many women, she turned
to Planned Parenthood, where she was a regular client and a strong supporter.
So when representatives from the local chapter said they would help her file a
complaint against Bartell with the Equal Employment Opportunity Commission last
December, she didn’t hesitate.
The resulting lawsuit has made waves for its landmark legal strategy. It
charges that a company whose insurance plan covers most prescription drugs but
excludes contraceptives violates federal laws because only women
use prescription contraceptives.
Family planning advocates argue that excluding birth control from
prescription coverage is not only discriminatory, it’s also economically
short-sighted. is far cheaper than the cost of either a pregnancy
or an abortion. In 1996, the Health Insurance Association of America estimated
it would cost about $16 per person to provide birth control coverage for
members of group plans. Compare that to the average cost of an abortion:
$316.
“Services for men get covered much quicker than services for women,”
says Judith DeSarno, president and CEO of the National Family Planning and
Reproductive Health Association. It was only 25 years ago that insurance
companies agreed to cover the cost of prenatal care. “There’s a very clear
pattern here,” she says. “It’s the nickel-and-diming of women’s
health.”
A recent nationwide survey found that two-thirds of Americans want insurers
to cover contraception. Currently 13 states have passed laws requiring health
plans to pay for contraceptives if they cover prescription drugs to include
contraceptives, and 21 states are considering such legislation. Federal
legislation has been stalled in Congress since 1997.
The big problem with the state laws, says Roberta Riley, the Planned
Parenthood attorney who filed the lawsuit, is that they generally don’t apply
to self-insured companies like Bartell, which put together their own medical
coverage for their workers. Because self-insured companies account for half of
all employer-sponsored health insurance, that leaves a large gap. And that,
Riley says, was one reason Planned Parenthood decided it was time to go to
court.
But before any lawsuit could be filed, the advocates needed a plaintiff who
was willing to risk taking on her employer. They found one in Jennifer
Erickson.
“Jennifer is a Rosa Parks; she has a sense of idealism and
altruism,” says Riley. “She’s a very intelligent young woman, a
thinking person. No doubt her experiences turning down women raised her
awareness and motivated her to stand up and do something about it.”
What also made her an ideal plaintiff is that “she’s not disgruntled,
she has no ax to grind with her employer about any other issue,” says
Riley. “She wants to pursue her career at Bartell Drugs, but she also wants
this company to cover contraception and wants to change the law so all
companies do so as well.”
“It’s hard to find a woman who will stand up to her boss for $30 a month
– the cost of birth control pills — and risk her job for a principle,”
says Law.
Jennifer Erickson simply shrugs off the deluge of praise. “Stepping
forward is not as hard as I thought it would be,” she says. “When you
really believe in something, it’s easy to do.”
Loren Stein, a journalist based
in Palo Alto, Calif., specializes in health and legal issues. Her work has
appeared in California Lawyer,Hippocrates,L.A. Weekly,
and The Christian Science Monitor, among other publications.