A DISTRICT court in Nebraska recently ruled that Union Pacific Railroad's exclusion of prescription contraception coverage from its employee health plans constitutes a violation of Title VII of the Federal Civil Rights Act of 1964. The section of that act makes it illegal for an employer to discriminate against an employee ''because of such individual's . . . sex." The act was amended in 1978 by the Pregnancy Discrimination Act to make it clear that the phrase ''because of sex" prevented discrimination against women ''affected by pregnancy, childbirth, or related medical conditions." The 1978 amendment was passed to reverse a 1976 Supreme Court case that ruled, mysteriously, that a company's disability plan that excluded pregnancy as a covered disability was not discrimination on the basis of sex, even though the court knew that only women become pregnant.
Among the company's arguments was that fertility is ''normal" and therefore prescription contraceptives are not a ''medical treatment" for which a medical plan provides benefits. The plan did not cover ''preventive services," according to the company. This raises an interesting question of how to distinguish between ''preventive" services and ''medical" services.
Judge Laurie Camp Smith, in rejecting this argument, noted that the company provided benefits to prevent a variety of undesired medical conditions. For example, high blood pressure itself is not a problem. The problem is that left ''untreated" high blood pressure can cause heart attacks and strokes, and therefore medication is actually a ''preventive" intervention.
Similarly, Smith noted that pregnancy brings about fatigue, nausea, vomiting, constipation, heartburn, leg cramps, sleeping problems, diabetes, and other medical conditions. Contraceptive medication prevents these problems. As a result, to treat high blood pressure medications differently from oral contraceptives is to deny only women access to a medication that prevents serious medical conditions. (Note: The company covers drugs for treatment of erectile dysfunction).
The company argued that it is only a matter of time before there is a male contraceptive and that the company does not plan to cover that medication. As a result, the company argues, there will be no sex discrimination (there is no discrimination as along as everyone is treated equally poorly). The company argued that since its medical plan does not cover fertility treatment or sterilization for either men or women it follows that it would not be discrimination for the plan to deny prescription contraceptives to both men and women. Smith rejected this reasoning because any contraception, male or female, is used to prevent only women from getting pregnant; any denial of prescription contraceptives would only negatively affect women and would therefore constitute sex discrimination.
This battle between Planned Parenthood of Western Washington (which represented the company's female employees) and Union Pacific lasted for over three years. It had to cost company stockholders millions of dollars in legal fees to support a practice that is medically indefensible. Furthermore, Union Pacific's concern could not be monetary. It clearly costs less to prevent unwanted pregnancies than to provide care for women who carry their unwanted pregnancies to term or terminate the pregnancy. Indeed, the money spent on these legal proceedings could have been invested in preventive health programs that would save millions more.
Given the fact that the denial of prescription contraceptives was both medically and economically indefensible, one would guess that the motives behind denying women access to contraceptives is related to either a ''moral" concern or pressure brought on the company by opponents of contraception. Either way, this arbitrary treatment of women is a lesson about why we need strong and enforced antidiscrimination laws. It is also a lesson of the shortcomings of a medical insurance system that relies on private employers to make policy about what is covered and what is not.
It is one more example of why we should not trust a system that makes a railroad company and other private companies a gatekeeper to the health care system.
Leonard H. Glantz and Michael A. Grodin are professors of health law, bioethics and human rights at Boston University School of Public Health.