Once Again, Viagra Wins


RH Reality Check would like to introduce Eesha Pandit as a regular weekly writer. Most recently, Eesha served as Associate Director of Programs at the Civil Liberties and Public Policy Program (CLPP) which is a reproductive rights organization that trains, educates, and inspires new leaders, organizers, and supporters nationwide. Prior to joining CLPP, Eesha worked with the Carr Center for Human Rights Policy at Harvard University and with Amnesty International USA's Women's Rights Program. She is currently a graduate student at the University of Chicago.

Last week, the 8th U.S. Circuit Court of Appeals heard an appeal of a 2005 federal court ruling that mandated Union Pacific Railroad to cover contraceptives in its health insurance plan.

Planned Parenthood and two female employees of Union Pacific filed a lawsuit that would require the company to provide coverage for FDA-approved prescription contraceptives for female employees, as well as female family members of male employees covered by the company's health plan. Judge Pasco Bowman, who sits on the appeals court panel, says that if the ruling sticks, it could mandate ALL companies to cover birth control in their health-care plans. Let's hope.

The plaintiffs asserted that the policy of excluding coverage for prescription contraceptives from a comprehensive employee health plan constitutes sex discrimination as a violation of Title VII. By singling out women and by forcing them to use their own money to get prescription contraception or face the risk of pregnancy, Union Pacific's policy constitutes sex discrimination violating the federal Civil Rights Act.

Union Pacific claims that this is not discrimination and to prove it, their attorneys showed up with some pretty remarkable reasons for allowing the company to deny contraceptive coverage. They argued that this policy is not discriminatory "because fertility is 'normal,'" and, therefore, birth control is not "medically necessary."

Somehow, Union Pacific's legal team managed to say this with a straight face, despite knowing that the company has no trouble offering prescription coverage to pay for drugs that manage erectile dysfunction – presumably because it is always medically necessary.

Union Pacific attorney Donald Munro argued that the policy didn't discriminate against women at all because under the policy all employees were denied contraception coverage, both men and women. Though the plan did provide contraceptive coverage for women who faced higher health risks from pregnancy and for women who needed it for other conditions, amazingly enough, contraception was not covered in the cases where it would be used to prevent pregnancy. Last time I checked, the intended use of contraception is to prevent conception. So the medication is covered for certain uses, just not the ones for which it is intended. Munro argued that coverage is denied only to employees who wanted to buy contraception for "family planning" purposes, which, in the eyes of Union Pacific, is not a health necessity.

Apparently, they looked and looked and UP still couldn't find any discrimination in the policy. Let's hope that the court can help them out. The company seems to think that the social and physical consequences are the same for men and women if they don't have access to birth control, implying that there is no health difference for men and for women if pregnancy were to occur due to lack of contraceptive coverage. Under this logic, carrying a pregnancy to term is not a sufficient health risk and an unwanted pregnancy falls at least several rungs below erectile dysfunction on the scale of health-care coverage priorities; effectively meaning that Viagra is more medically important than birth control.

I wonder if all this will change when there's finally a viable male contraceptive on the market.

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  • pjean

    What is with these guys? They don’t have wives or daughters? Or a conscience? I had to pay the full cost of my tubal ligation. My husband had to have surgery to correct a condition that was causing erectile dysfunction. His surgery was covered by our insurance, of course, the penis being a sacred and holy organ!