Keeping Them Barefoot and Pregnant

Published March 30, 2007 @ 08:22AM PT

If an insurance plan covers Rogaine for cosmetic male hair loss, isn’t it only fair that it should cover prescription birth control, which allows women to decide when and if they want to face the serious health and lifestyle implications of pregnancy? Union Pacific Railroad doesn’t think so. The company’s insurance plan covers prescription drugs like Viagra and Rogaine affecting men’s sexual health and quality of life. Yet it does not cover prescription contraceptives that allow women to enjoy sex while deferring pregnancy. Retail costs for prescription oral contraceptives run approximately $360 per year. So without coverage, women who are struggling to make ends meet may be forced to turn to less reliable methods of contraception and stand a greater chance of getting pregnant.

Sound like a double standard? Not according to the Eighth Circuit, which held earlier this month in a discrimination suit brought by female employees of child-bearing age that Union Pacific’s plan didn’t violate Title VII, as amended by the Pregnancy Discrimination Act (PDA).

The PDA provides that women may not be treated differently than men simply because of pregnancy or medical conditions "related to" pregnancy. The ability to become pregnant is a condition clearly "related to" pregnancy. Seemingly then, a plan covering quality-of-life and preventative drugs for men – but not covering drugs designed to address similar health needs of women who are able but don’t wish to become pregnant – would be discriminatory. If Union Pacific’s plan covers Viagra, it should cover drugs that allow women to have sex without risking the health and lifestyle changes that go with pregnancy.

A slam dunk, you say. Well, the district court judge sure thought so, and ruled in favor of the employees. But on appeal, two conservative judges on the Eighth Circuit got their mitts on this case and employed twisted logic to argue that Union Pacific’s health plan did not discriminate. Bush II-appointee Raymond Gruender, joined by Reagan-appointee Pasco Bowman, concluded – contrary to the Supreme Court and common sense – that the PDA did not require Union Pacific to provide prescription contraceptive coverage to its female employees.

The majority speciously contended that the female employees in this case were not protected by the PDA. According to the two judges, the employees’ contraceptive use was not a condition "related to" pregnancy because the use of contraceptives "is only indicated prior to pregnancy" and "prevents pregnancy from even occurring." However, as Clinton-appointee Kermit Bye asserted in dissent, the language of the PDA – as interpreted by the Supreme Court – reveals that it was broadly intended to proscribe “classifying employees on the basis of childbearing capacity, whether or not they were already pregnant.” So the fact that contraceptive use occurs “prior to pregnancy,” as the majority pointed out, is irrelevant – what matters is that the affected women are “of childbearing capacity.” And the majority’s suggestion that the female employees in this case are not protected by the PDA just because they are trying to defer pregnancy makes no sense either – imagine an employer being able to deny promotions to women capable of getting pregnant but who have chosen not to do so.

The majority in this case further held that, even if the PDA did cover women who wished to use contraceptives, Union Pacific’s plan was still nondiscriminatory because it excluded all contraceptives, whether utilized by men or women. However, as Judge Bye pointed out, the failure to cover contraceptives:

"...only medically affects females, as they bear all of the health consequences of unplanned pregnancies. ... [E]ven if we were to look at its exclusion coverage of vasectomies, the policy nonetheless discriminates against females. ... [A]s the record demonstrates, women are the only gender which can become pregnant."

And, Judge Bye observed, Union Pacific covered prescriptions designed exclusively to treat men’s health problems, but denied women who might become pregnant coverage for prescription contraceptives – leaving them to less reliable birth control methods. Because the insurance plan prevented these women from having sex without the risk of "bear[ing] all the health consequences" of getting pregnant – while covering various medications designed to improve men’s lives – the plan was discriminatory, according to Judge Bye.

The majority’s analysis is contrary to the intent of Congress and to the precedent of the Supreme Court. This setback for gender equity, written by a Bush II appointee and issuing from a court dominated by Bush II appointees, is a stark reminder that, of all his legacies, the judges appointed by President Bush will have an impact on our everyday lives for years to come. But at least we know that the male employees at Union Pacific are well taken care of.

Standridge v. Union Pacific, No. 06-1706 (8th Cir., March 15, 2007)