About CRLP
On the Hill
In the Courts
Worldwide
Publications
Press
Newsletter: RFN











publications

in this section



CRLP bookstore

Fact SheetsFact Sheets

Books & ReportsBooks & Reports

Articles & Briefing PapersArticles & Briefing Papers

Shadow ReportsShadow Reports

Packets and GuidesPackets and Guides

VideosVideos

Izdaniia na russkom iazyke (Russian)Izdaniia na russkom iazyke (Russian)



search


donate
back to home
June 2002

Item: F013

  Contraceptive Coverage for All:

EPICC Act is Prescription for Women’s Equality

What is the EPICC Act?

Every year, an estimated 31 million American women are at risk for unintended pregnancy. Although many of these women have health insurance, countless numbers are denied access to affordable contraception by their insurance plans. The Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC)1 ensures access to contraception by prohibiting health insurance plans that provide prescription drugs, devices, and outpatient services from excluding coverage of FDA-approved prescription contraceptive drugs and devices (including oral contraceptives, diaphragms, Norplant, Depo Provera, cervical caps and IUDS) and related outpatient contraceptive services.

American Women Need EPICC

Contraception is basic health care:

  • Among women aged 20-44 who have ever been sexually active, 85% have used oral contraceptives at some point in their lives.2
  • Three-fourths of American women of childbearing age rely on private insurance to defray medical expenses.3
  • On average, women aged 15-44 pay 68% more for out-of-pocket medical costs than their male counterparts. This is due in large part to the cost of reproductive health care such as contraceptive coverage.4

A study on private insurance found that:
  • 49% of large group health insurance plans do not routinely provide contraceptive coverage.
  • Though 97% of large group plans cover prescription drugs, a mere 33% cover oral contraceptives—the most popular method of reversible birth control among American women.
  • Only 15% of large group plans cover all five of the most common methods of reversible contraception: oral contraceptives, diaphragms, Depo Provera, IUDs, and Norplant.

Source: The Alan Guttmacher Institute, Uneven and Unequal, Insurance Coverage and Reproductive Health, 1995.


Many Insurance Plans Exclude Contraception While Covering Other Services

A study on private insurance found that almost half of all large group health insurance plans do not routinely provide contraceptive coverage. In contrast:

  • 86% of all plans cover tubal ligation;5
  • 97-98% of large group plans and HMOs cover maternity care;6 and
  • 66% of typical plans cover medically necessary or appropriate abortion services.7

Additionally, it is estimated that over half of all prescriptions for Viagra, a male impotency drug, are covered by insurance.8

Economics Justify Insurance Coverage for Contraceptives

Women whose health insurance does not cover the full range of contraceptives are forced to pay contraceptive costs out-of-pocket, which can cost as much as $300-$700 per year. In contrast, the cost to employers of providing insurance is minimal – for example, one estimate found the employer’s cost to be as little as $1.43 per employee per month.9 Three in four adult women say cost is an important factor when choosing between a contraceptive method that is covered and one that is not.10 Concerns over out-of-pocket costs have led some women to delay contraceptive use or to select less appropriate or effective methods. Those women without insurance coverage may even forego contraceptive use entirely and be at high risk of unintended pregnancy.

Legal Precedent Requires Employers to Cover Prescription Contraception

Since 1978, federal law has required equal treatment of "women affected by pregnancy, childbirth, or related medical conditions… for all employment-related purposes, including receipt of benefits under fringe benefits programs."11 In 1991, the Supreme Court held that this provision prohibits "discrimination on the basis of a woman’s ability to become pregnant," as well as pregnancy itself.12 Citing the PDA, the EEOC and a federal district court recently ruled that women have the right to equal coverage for prescription contraceptives.

In December 2000, the Equal Employment Opportunity Commission (EEOC) ruled that an employer’s exclusion of contraceptives from its health insurance plan constituted impermissible sex discrimination.13 The EEOC determined that "[t]he PDA’s prohibition of discrimination in connection with a woman’s ability to become pregnant necessarily includes the denial of benefits for contraception." It further found the "PDA requires that expenses related to pregnancy, childbirth, or related medical conditions be treated the same as expenses related to other medical conditions." It found reasonable cause to believe that the employer "engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, by failing to offer insurance coverage for the cost of prescription contraceptive drugs and devices." The EEOC required the employer to cover the expenses of prescription contraceptives to the same extent that it covered other drugs, devices and preventative care, and to reimburse the costs of prescription contraceptives for the applicable back pay period. It also mandated that "coverage must extend to the full range of prescription contraceptive choices. Because the health needs of women may change – and because different women may need different prescription contraceptives at different times in their lives – [the employer] must cover each of the available options for prescription contraception," in all of its health care plans.

The following year, in a similar case, the District Court for the Western District of Washington held that the failure of a Seattle-based drugstore chain to cover prescription contraceptives in its otherwise comprehensive prescription drug plan constituted sex discrimination under Title VII, as amended by the PDA14. The court stated that the PDA "is a broad acknowledgement of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees." It noted that "[t]he special or increased healthcare needs associated with a women’s unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs." The court also acknowledged that "[u]nintended pregnancies, the condition which prescription contraceptives are designed to prevent, are shockingly common in the United States and carry enormous costs and health consequences for the mother, the child, and society as a whole." The court found that the drugstore discriminated against its female employees "by providing less complete coverage than that offered to male employees." The court echoed the EEOC decision by mandating that the employer cover all available options for prescription contraception just as it covered other prescriptions and services.

In light of these decisions, private health insurance plans should provide prescription contraceptive coverage just as they provide coverage for other prescription drugs, devices and services.

Federal Legislation Is Necessary

Since EPICC was first introduced in 199715, nineteen states (AZ, CA, CT, DE, GA, HI, IA, MD, MA, ME, MO, NC, NH, NM, NV, RI, TX, VT and WA) have adopted laws and/or regulations requiring equal coverage of contraceptives. Additionally, in 1998, Congress voted to ensure access to contraceptive coverage for all participants in the Federal Employees Health Benefit Program, and has renewed this coverage every year. Despite these gains and the recent rulings confirming women’s right to equal coverage of contraception, employers and regulators have been slow to respond. There is still a vast shortage of contraceptive coverage, and passage of EPICC is crucial to redress this gap.

CRLP supports EPICC and urges Congress to pass this landmark legislation as soon as possible.


1. S. 104, H.R. 1111.
2. Alan Guttmacher Institute, Cost to Employer Health Plans of Covering Contraceptives, 1998: 5.
3. Id. At 4.
4. Women’s Research and Education Institute, Women’s Health Insurance Costs and Experiences, 1994: 2.
5. The Alan Guttmacher Institute, Uneven and Unequal, Insurance Coverage and Reproductive Health Services, 1995: 9.
6. Id.
7. Id.
8. Planned Parenthood, Equity in Prescription Insurance and Contraceptive Coverage, 2002:1.
9. Rachel Benson Gold, The Need for Mandating Private Insurance Coverage of Contraception, in The Alan Guttmacher Report on Public Policy, 1998: 1,4.
10. Id.
11. 42 U.S.C. § 2000e(k). Congress amended Title VII of the Civil Rights Act of 1964 to include this provision, also known as the Pregnancy Discrimination Act, or PDA, in response to the Supreme Court’s decision in General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), which held that Title VII as originally enacted did not protect women against discrimination on the basis of pregnancy.
12. Int’l Union, UAW v. Johnson Controls, 499 U.S. 187, 199 (1991).
13. Equal Employment Opportunity Commission (EEOC), Decision on Coverage of Contraception (Dec. 14, 2000); at http://www.eeoc.gov/docs/decision-contraception.html. 14. Erickson v. Bartell Drug Company, 141 F.Supp.2d 1266, 1271, 1273 (W.D.Wa. 2001).
15. EPICC was introduced in 1997, 1999, and again in 2001 by Senators Olympia Snowe (R-ME) and Harry Reid (D-NV) and Representatives Jim Greenwood (R-PA) and Nita Lowey (D-NY). See, e.g., H.R. 1111, S. 104 (2001).


See our fact sheet for information on states that have passed contraceptive equity laws.
































About CRLP
On the Hill
In the Courts
Worldwide
Publications
Press
Newsletter: RFN