Having trouble in the bedroom? Going bald? Not to worry, the health insurance policy you have through your employer will likely cover health care essentials like Rogaine and Viagra. Want to avoid an unplanned pregnancy? Now you’re just getting greedy.
Last week, a three judge panel on the 8th Circuit Court of Appeals ruled 2-to-1 that Union Pacific, the country’s largest railroad company, did not discriminate against women by denying health care coverage for prescription contraception. For an incalculable number of female workers who count on health insurance to subsidize contraception costs, preventing an unwanted pregnancy just got that much harder.
The two judges, brought to us compliments of former presidents Reagan and Bush, cleverly skirted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of gender. They also dodged the Pregnancy Discrimination Act, which amended Title VII in 1978. The decision overturned precedent established in 2005 by a Nebraska district court and flat-out rejected a 2000 Equal Employment Opportunity Commission decision, both of which determined health insurance must cover all FDA-approved contraception.
The Pregnancy Discrimination Act’s language explicitly bars discrimination on the basis of “pregnancy, childbirth or related medical conditions.” In a hairsplitting move, the majority drew a distinction between being pregnant and becoming pregnant. It reasoned that because contraception is preventive and taken before pregnancy actually occurs, the act doesn’t apply. Apparently, contraceptives are not related to pregnancy after all. The judges’ wording is almost as absurd as the reasoning itself: “While contraception may effect the causal chain that leads to pregnancy, we specifically reject the argument that a causal connection, by itself, results in a medical condition being related to pregnancy.”
Of course, whether or not a woman takes birth control has everything to do with pregnancy. Taking contraception is not one small link in a long, complex cosmological chain that somehow, loosely leads to pregnancy. What the court is basically saying here is: Get pregnant, wait until a problem arises, then we’ll talk about coverage.
After undermining the Pregnancy Discrimination Act, the court tackled the issue of gender discrimination. The judges found that Union Pacific’s denial of contraception was “gender neutral,” because the company denied birth control equally to both men and women.
Wait a minute. Are these judges actually likening the cost of prescription birth control to the cost of condoms? Apparently they have never seen condoms on sale for under a buck at the gas station or gone with their girlfriends/wives to a pharmacy to learn that without health insurance, the pill can cost more than $50 per month. But the decision also stipulated that Union Pacific wasn’t handing out vasectomies either. Clearly, the denial of birth control was equal.
But the oddest component of the decision is the clause that denies health care coverage to women using birth control “for the sole purpose of contraception.” Ironically, women using the pill for other, more important reasons (like clearing up skin or regulating their menstrual cycle) might actually be eligible for coverage. Do we really have to regress to high school, when girls cunningly asked their parents for birth control pills to control acne breakouts? We’re all adults here.
The only person in the room who seemed to have any common sense was the dissenting judge, Kermit Bye. Pointing out what should have been obvious, Judge Bye noted that women are the only gender that can become pregnant, and therefore discrimination is inherent: “This failure (to provide coverage) only medically affects females, as they bear all of the health consequences of unplanned pregnancies.” I hope his wife popped some birth control and thanked him kindly for that much-needed insight. After all, men may bear the financial and emotional burdens of an unplanned pregnancy, but women are the only ones in danger of bodily harm.
However, putting aside the case’s legal jargon, the cultural irony here is startling. So often we hear people say, “There is just no excuse for having a child out of wedlock, what with birth control and all.” Pro-lifers frequently use the slogan “abortion is not a form of birth control.”
So why make it harder for women to safely prevent pregnancy? Democrats and Republicans don’t see eye-to-eye on much, but one thing everyone can agree on is the fewer abortions, the better. If we don’t want women shying away from preventive birth control because of financial constraints, the pill must be covered by insurance. If everyone wants to see a decrease in the number of abortions in America, denying women contraception coverage is counterproductive. These judges may have found a legal loophole, but consider the effect this decision will have on the number of abortions in America.
And where was the female judge in this ruling? There’s something odd about an all-male panel ruling on a woman’s right to birth control.
But one thing at a time, I suppose.
Whitney Dibo is an associate editorial page editor. She can be reached at email@example.com.