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On Appeal from the United States District Court BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and 29(c), Amicus Curiae Equal Employment Advisory Council discloses the following: The Equal Employment Advisory Council has no parent No publicly held company owns 10% or more stock in the Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W. Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL TABLE OF CONTENTS
INTEREST OF THE AMICUS CURIAE . 1 I. THE DISTRICT ERRED IN CONCLUDING THAT THE EMPLOYER’S PRESCRIPTION PLAN VIOLATED TITLE VII, AS AMENDED BY THE PREGNANCY DISCRIMINATION ACT, BY DENYING COVERAGE FOR CONTRACEPTIVES . 7 A. The Prevention of Pregnancy Is Not Protected by the PDA Because It Is Not “Pregnancy, Childbirth, or [a] Related Medical Condition[].”. 7 B. The PDA Requires Only That “Pregnancy, Childbirth, or Related Medical Conditions” Be Treated in a Neutral Way. . 12 THE ISSUE OF WHETHER EMPLOYER-SPONSORED PLANS SHOULD COVER CONTRACEPTIVES IS NOT A LEGAL ISSUE FOR THE COURTS TO DECIDE BUT A PUBLIC POLICY ISSUE TO BE DETERMINED BY THE PRIVATE MARKET FORCES OR, IN THE ALTERNATIVE, BY LEGISLATION. . 16 A. Any Increase in the Cost of Health Insurance Coverage Resulting from Either Judicial or Legislative Mandates Jeopardizes the Availability and Affordability of Plans to Employers and Their Employees. . 17 In Considering the Issue Before It, This Court Should Also Consider the Broader Impact of Any Decision That Requires Insurance Plans Provide Coverage of Any Prescription, Treatment, or Medical Condition That Is Only Available to or Somehow Unique to One Sex. . 21 C. Because the PDA Does Not Mandate That an Employer’s Prescription Plan Cover Contraceptives, if Coverage Is To Be Required, It Is for Congress To Decide. . 23 TABLE OF AUTHORITIES
FEDERAL CASES
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).8 Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wa. 2001). 3, 4, 16, 17 Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487 (D. Colo. 1997) .11 International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991) . 5, 13, 14 Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674 (8th Cir. 1996) . 4, 10 Laporta v. Wal-Mart Stores, Inc., 163 F. Supp.2d 758 (W.D. Mich. 2001).11 Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) . 5, 14, 15 Norfolk & W. Ry. v. American Train Dispatchers' Ass'n, 499 U.S. 117 (1991) .8 Piantanida v. Wyman Ctr., Inc., 116 F.3d 340 (8th Cir. 1997). 4, 5, 11 The Lottawanna, 88 U.S. 558 (1874) . 6, 26 Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D. Ky. 1990), aff’d mem., 951 F.2d 351 (6th Cir. 1991) .11 STATUTES
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) . 1, 4, 7, 9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. .1 N.C. Gen. Stat. § 58-3-178(c)(4)(b) .25 PENDING LEGISLATION
Equity in Prescription Insurance and Contraceptive Coverage Act, H.R. 1111, 107th Cong. (2001) . 23, 24 Equity in Prescription Insurance and Contraceptive Coverage LEGISLATIVE HISTORY
144 Cong. Rec. H5718 (daily ed. July 16, 1998) .25 144 Cong. Rec. H5721 (daily ed. July 16, 1998) .25 H.R. Rep. No. 95-948 (Mar. 13, 1978) and H.R. Conf. Rep. No. 95-1786 (Oct. 13, 1978) reprinted in 1978 U.S.C.C.A.N. 4749-67.8 Senate Comm. on Labor and Human Resources, 95th Cong., 2d Sess., Legislative History of the Pregnancy Discrimination Act of 1978 (Comm. Print 1980).8 MISCELLANEOUS
Employee Benefits Research Institute, EBRI Issue Brief No. 213, Executive Summary, Employment-Based Health Benefits: Who Is Offered Coverage vs. Who Takes It (September 1999) .20 Kaiser Family Foundation, Fact Sheet, Coverage of Gynecological Care and Contraceptives (December 2000) .14 Kaiser Prescription Drug Trends: A Chartbook Update Kaiser/HRET, Employer Health Benefits: 2001 Annual Survey National Conference of State Legislatures, Women’s Health Insurance Coverage for Contraceptives (December 2001) .24 Sarah E. Bycott, Note, Controversy Aroused: North Carolina Mandates Insurance Coverage of Contraceptives in the Wake of Viagra, 79 N.C. L. Rev. 779 (March 2001) . 18, 25 The Equal Employment Advisory Council respectfully submits this brief amicus curiae with the consent of all parties. The brief urges the Court to reverse the district court’s ruling and thus supports the position of Defendant-Appellant The Bartell Drug Company before this Court. STATEMENT OF THE ISSUE
Whether the exclusion of prescription contraceptives from Defendant- Appellant’s employee prescription drug benefit plan constitutes discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”). INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of discriminatory employment practices. Its membership now includes more than 340 of the nation’s largest private sector companies, collectively providing employment to more than 17 million people throughout the United States. EEAC’s directors and officers include many of industry’s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC an unmatched depth of knowledge of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC’s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC’s members are employers subject to Title VII and other equal employment statutes and regulations. EEAC member companies typically provide their employees (and the employees’ dependents) with partially or fully-paid group health insurance, often including coverage for prescription drugs. In fact, the vast majority of Americans, many of whom are employees of EEAC member companies, insure against health care costs by participating in employer-sponsored group health plans. For decades, employers have voluntarily provided health benefits designed to meet the health and financial needs of their workforces and their dependents. Because of the importance of this employee benefit to employees and employers alike, the issue presented in this appeal is extremely important to the nationwide constituency that EEAC represents. EEAC thus has an interest in, and a familiarity with, the legal and public policy issues presented to the Court in this case. Furthermore, because of its significant experience in equal employment policy matters, EEAC is uniquely situated to brief the Court on the importance of the issues beyond the immediate concerns of the parties to the case. STATEMENT OF THE CASE
This matter is proceeding as a class action on behalf of all female employees of Bartell Drug Company (“Bartell”) who at any time after December 29, 1997, were enrolled in Bartell’s Prescription Benefit Plan for non-union employees while using prescription contraceptives. Erickson v. Bartell Drug Co., 141 F. Supp.2d 1266, 1268 (W.D. Wash. 2001). Plaintiff- Appellee Jennifer Erickson asserts that Bartell’s decision not to cover prescription contraceptives, such as birth control pills, under its Prescription Benefit Plan for non-union employees violates Title VII. ER 152. Bartell’s drug plan, which is self-insured, covers prescription drugs. The plan contains some specific exclusions from coverage, including contraceptive drugs and devices, drugs prescribed for weight reduction, infertility drugs, smoking cessation drugs, dermatologicals for cosmetic purposes, growth hormones, and experimental drugs. ER 183-84. Erickson’s complaint asserts claims of disparate treatment and disparate impact, and demands an injunction mandating that Bartell cover the five Food and Drug Administration-approved types of reversible prescription contraception. Amended Complaint, Prayer for Relief, ¶ 48(c) ; ER 12, 177-78. Erickson moved for summary judgment on her disparate treatment claim, and Bartell sought summary judgment on both the disparate treatment and disparate impact claims. The district court granted Erickson’s motion for summary judgment. Erickson, 141 F. Supp.2d at 1277. Because it granted summary judgment in favor of Erickson on her disparate treatment claim, the district court determined that it need not consider Bartell’s motion for summary judgment regarding the disparate impact claim. Id. Bartell filed a timely appeal of the district court’s ruling. SUMMARY OF ARGUMENT
In the Pregnancy Discrimination Act (PDA) in 1978, Congress explicitly amended Title VII of the Civil Rights Act of 1964 to provide that discrimination “on the basis of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). The plain language of the PDA contains no specific reference to contraceptives and does not suggest that “related medical conditions” extend outside the context of “pregnancy” and “childbirth.” Indeed, canons of statutory construction (see Norfolk & W. Ry. v. American Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991)) dictate that “related medical conditions” should be understood as referring only to those related directly to “pregnancy” and “childbirth.” Other courts have similarly interpreted the PDA in this manner. See Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674 (8th Cir. 1996); Piantanida v. Wyman Ctr., Inc., 116 F.3d 340 (8th Cir. 1997). Pregnancy and childbirth, which occur after conception, are categorically different than efforts that are taken to prevent conception from occurring. Such efforts, including prescription contraceptives, are therefore outside the purview of the PDA. Even if the prevention of pregnancy were covered by the PDA’s protective language, the statute would not mandate coverage of every associated expense. Rather, the statute provides only that an employer must treat pregnancy, childbirth, or related medical conditions in a neutral way. The PDA does not require that an employer provide health insurance coverage for every method that avoids pregnancy (or even every method that enables pregnancy); thus, the District Court’s reliance upon International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991), and Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), was misplaced. A correct construction of the PDA, as supported by U.S. Supreme Court cases interpreting the statute, requires a determination by this Court that Bartell’s prescription plan does not violate the PDA as all its employees and their dependents are excluded from receiving contraceptive The District Court erred by reaching its determination that Bartell’s exclusion for contraceptives from its prescription plan violated the PDA not based on the language of the PDA―as clearly support could not be found in the statute itself―but on emotional appeals that the availability of contraceptive coverage within the prescription plan was necessary to prevent dire social consequences. It is for Congress, however, to make the law, not the courts. See The Lottawanna, 88 U.S. 558, 576-77 (1874) (“[W]e must always remember that the court cannot make the law…. If any change is desired in [a law], … it must be made by the legislative department”). As Congress has yet to pass legislation requiring employers to provide coverage of contraceptives within their prescription plans, the District Court erred in issuing this mandate. Moreover, any such mandate must come from Congress (or our state legislatures) only after giving this difficult issue a full and fair public debate, including a consideration of how such a mandate will impact the already escalating cost of health insurance and spending on prescription drugs; a consideration of the broader impact of any decision that requires health insurance plans to provide coverage of any prescription, treatment, or medical condition that is only available to or somehow unique to one sex; and a consideration of the other related politically charged issues―the resolution of which will have far reaching social consequences. ARGUMENT
THE DISTRICT ERRED IN CONCLUDING THAT THE
EMPLOYER’S PRESCRIPTION PLAN VIOLATED TITLE
VII, AS AMENDED BY THE PREGNANCY
DISCRIMINATION ACT, BY DENYING COVERAGE FOR
CONTRACEPTIVES

The Prevention of Pregnancy Is Not Protected by the PDA
Because It Is Not “Pregnancy, Childbirth, or [a] Related
Medical Condition[]”

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. 42 U.S.C. § 2000e-2(a). The Pregnancy Discrimination Act, passed in 1978, amended Title VII to provide that discrimination “on the basis of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. Under the plain language of the statute, prescription contraceptives are not within the purview of the PDA’s protections and requiring employers to cover contraceptives under their prescription plans would impermissibly extend the statute beyond its intended scope. First, there is no specific reference to contraceptives in the PDA. The absence of any specific reference to “contraception” underscores the statute’s prime purpose of prohibiting discrimination against women affected by pregnancy, which is clearly different than efforts engaged in by men and women to prevent conception. See Senate Comm. on Labor and Human Resources, 95th Cong., 2d Sess., Legislative History of the Pregnancy Discrimination Act of 1978 (Comm. Print 1980); see also H.R. Rep. No. 95-948 (Mar. 13, 1978) (Education and Labor Comm.) and H.R. Conf. Rep. No. 95-1786 (Oct. 13, 1978) reprinted in 1978 U.S.C.C.A.N. 4749-67. In addition, basic rules of statutory construction place prescription contraceptives outside the purview of the PDA. Under general rules of statutory construction, “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” Norfolk & W. Ry. v. American Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991). See also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S. Ct. 1302, 1308-1309 (2001) (citing 2A N. Singer, Sutherland on Statutes and Statutory Construction 47.17 (1991)) (the application of the maxim ejusdem generis requires that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words”). Thus, “related medical conditions,” a general phrase, thus should be understood only as referring to conditions related to “pregnancy” and “childbirth,” the specific terms that precede it. Pregnancy and childbirth, which occur after conception, are entirely different activities than those intended to prevent conception from The PDA’s specific provision that it “shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion,” see 42 U.S.C. § 2000e(k), does not compel a conclusion that excluding coverage for prescription drugs is thereby unlawful. The abortion exception does not suggest that Congress envisioned that pregnancy and related medical conditions would encompass measures to avoid pregnancy. Abortion is not the avoidance of pregnancy—it is the termination of a pregnancy that has already occurred; thus, it is related to a woman’s pregnancy. Absent the exemption, coverage for abortions would fall within the scope of the PDA’s prohibition against discrimination based on pregnancy-related medical conditions.2 Unlike abortions, however, prescription contraceptives prevent the occurrence of “pregnancy, childbirth, or related medical conditions” Judicial interpretation of the PDA supports the position that not all things dealing with a woman’s ability to reproduce are related to “pregnancy” and “childbirth” and, moreover, that the exclusion of prescription contraceptives from an employer’s prescription plan does not constitute discrimination on the basis of sex. The only federal court of appeals to address whether infertility is a medical condition “related” to pregnancy or childbirth within the meaning of the PDA has concluded that it is not. In Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996), the Eighth Circuit concluded that the general phrase “related medical conditions” should be understood as referring to conditions related to the specific terms of “pregnancy” and “childbirth.” Id. at 679. The court observed that neither the plain language of the PDA nor the legislative 2 Moreover, as abortion was a highly controversial issue then, as it still is today, Congress sought to avoid the entanglement of this controversial issue in the debate over the PDA’s protections to women by excluding its coverage even though it was clearly within the scope of the term “pregnancy.” history reflected any legislative intent to include infertility (a condition that can affect both men and women) within the ambit of the PDA. Id. See also Laporta v. Wal-Mart Stores, Inc., 163 F. Supp.2d 758, 770 (W.D. Mich. 2001) (finding Krauel as persuasive authority on the statutory construction of the PDA). Likewise, in our enlightened society, we clearly believe that the avoidance of an unwanted pregnancy is the responsibility of both men and women, and there is no evidence that Congress intended the use of contraceptives in order to avoid an unwanted pregnancy to be within the Another decision from the Eighth Circuit sheds additional light on the proper construction of the PDA. In Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997), the court concluded that “an individual’s choice to care for a child is not a ‘medical condition’ related to childbirth or pregnancy.” Id. at 342 (emphasis added). The court observed that parenthood is a social role chosen by all new parents who make the decision to raise a child. Id. See also Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491-92 (D. Colo. 1997); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869-70 (W.D. Ky. 1990) (Title VII and the PDA do not cover breast feeding or childrearing concerns because they are not “pregnancy, childbirth or related medical conditions”), aff’d mem., 951 F.2d 351 (6th Cir. 1991). While the class of new parents of course includes women who give birth to children, it also includes women who become mothers through adoption rather than childbirth and men who become fathers either through adoption Similarly, the choice to attempt to prevent a pregnancy is not a “medical condition” related to childbirth or pregnancy. Indeed, while only women can become pregnant or personally experience childbirth, both men and women use contraception to avoid conceiving a child. The fact that prescription contraceptives are currently only available to women does not change the fact that they are not a “medical condition” related to childbirth or pregnancy. An employer’s prescription plan that excludes prescription contraceptives is not discriminating on the gender-specific biological functions of pregnancy and childbearing, but rather on a gender-neutral basis possessible by all employees and their dependents. Thus, the District Court erred in concluding that the use of contraceptives is within the purview of the PDA; rather, their use is not protected by the PDA because contraceptives are not “pregnancy, childbirth, or related medical conditions.” The PDA Requires Only That “Pregnancy, Childbirth, or
Related Medical Conditions” Be Treated in a Neutral Way.


Even if the prevention of pregnancy were covered by the PDA’s
protective language, the statute would not require that an employer provide insurance coverage for every associated expense. The PDA does not require that individuals receive special treatment regarding pregnancy, childbirth, or related medical conditions, but only that such conditions be treated in a The PDA merely requires that employment or access to an employer’s fringe benefit program not be denied or limited on the basis of sex, including pregnancy, ability to bear children, or related medical conditions. Thus, as long as both men and women receive the same benefits and are subject to the same exclusions under an employer’s insurance plan, the plan does not The U.S. Supreme Court’s decision in International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991), does not compel a different result. In Johnson Controls, the Supreme Court was asked to determine the legality of Johnson Controls’ “fetal-protection” policy, which prohibited women of child-bearing age from working in jobs where they could be exposed to levels of lead that are potentially damaging to a fetus. The Supreme Court ruled that the policy violated Title VII as amended by the PDA because the employer “has chosen to treat all its female employees as potentially pregnant; that choice evinces discrimination on the basis of sex.” Id. at 199. Such a policy, the Court reasoned, “is not neutral because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females. Id. The Court’s holding in Johnson Controls, however, cannot be extended logically to require employers to fund prescription contraceptives. First, Johnson Controls dealt with an explicit policy that discriminated against women, but not men, based on their reproductive capacity. In contrast, the employer in this case is not providing lesser benefits to women because of their childbearing capacity. The fact that prescription contraceptives are available only to women is due to the current status of medical research, not to discrimination against women.3 Nor does the Supreme Court’s decision in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), compel a different conclusion. In Newport News the Supreme Court held that an employer's benefit plan that provides female employees with greater hospitalization benefits for pregnancy-related conditions than it did for spouses of male employees violated the PDA. The provision effectively gave male 3 Of course, there are other methods of contraception other than prescription contraception. The most commonly used of all methods of contraception are tubal ligation (28%) and birth control pills (27%), followed by condoms (20%)―a male contraceptive that is available without a prescription. See Kaiser Family Foundation, Fact Sheet, Coverage of Gynecological Care and Contraceptives (December 2000), available at http://www.kff.org/content/2000/1557b/covgynserfs.pdf. employees less coverage for their spouses than it gave female employees for the same condition. The Court held that “discrimination against female spouses in the provision of fringe benefits is also discrimination against male Thus, Newport News dealt with providing lesser coverage for one gender of employees by providing less benefits to the female dependents of male employees. In the instant case, in contrast, the employer provides the same level coverage for all employees. All employees and their dependents are excluded from receiving contraceptive coverage. Thus, under a Newport News analysis, male employees are affected in precisely the same way as female employees because their spouses are prohibited from receiving An employer’s prescription drug plan which does not cover contraceptives discriminates against those who use them only in the same sense that it discriminates against those who might need penile prosthetic implants (which may be medically necessary to cure impotence), Kerato- refractive eye surgery (which may be medically necessary to cure vision defects), or hearing aids (which may be medically necessary to overcome deafness). All of these exclusions are gender neutral. The law does not require that employers provide benefits to employees, but only that there be equality in whatever is (or is not) provided. THE ISSUE OF WHETHER EMPLOYER-SPONSORED
PLANS SHOULD COVER CONTRACEPTIVES IS NOT A
LEGAL ISSUE FOR THE COURTS TO DECIDE BUT A
PUBLIC POLICY ISSUE TO BE DETERMINED BY THE
PRIVATE MARKET FORCES OR, IN THE ALTERNATIVE,
BY LEGISLATION.

In concluding that Bartell violated the PDA by excluding contraceptives from its prescription plan, the district court, overlooking the clear limitations of the prohibitions covered by the PDA, stated that “regardless of whether the prevention of pregnancy falls within the phrase ‘pregnancy, childbirth, or related medical conditions,’” Erickson, 141 F. Supp.2d at 1274, the exclusion is “inconsistent with the requirements of federal law.” Id. at 1271. Apparently, this district court based this inconsistency on the purported “evidence submitted by plaintiffs [that] shows … that the availability of affordable and effective contraceptives is of great importance to the health of women and children because it can help to prevent a litany of physical, emotional, economic, and social consequences.” Id. at 1272-73 (citing Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 Wash. L. Rev. 363, 364-68 (1998)). While there may be some public policy considerations that would encourage employers to provide coverage for prescription contraceptives, there are even stronger reasons why the types and levels of health insurance coverage, including prescription coverage that an employer chooses to provide to its employees and their dependents, should not be mandated. In any event, Congress has yet to pass legislation requiring employers to provide such coverage, and the issue deserves a full and fair public debate before mandating such coverage. Any Increase in the Cost of Health Insurance Coverage
Resulting from Either Judicial or Legislative Mandates
Jeopardizes the Availability and Affordability of Plans to
Employers and Their Employees.


Many who support mandating the coverage of prescription
contraceptives argue that the availability of affordable and effective contraceptives will result in only a fractional increase in health plan premiums, while “help[ing] to prevent a litany of physical, emotional, economic, and social consequences.” Erickson, 141 F. Supp.2d at 1272-73. Actually, the question of cost-benefit balance is far from settled in the controversy over mandated coverage of prescription contraceptives. Central to the argument that prevention of pregnancy and pregnancy-related costs through the use of contraceptives will result in substantial economic savings and social benefits, is the assumption that, if contraceptives were covered by insurance, individuals who do not use birth control because of its expense would begin practicing a covered contraceptive method. However, thus far, no studies have been conducted exploring the validity of this basic assumption upon which much of the cost-benefit analysis in favor of contraceptive coverage hinges. See Sarah E. Bycott, Note, Controversy Aroused: North Carolina Mandates Insurance Coverage of Contraceptives in the Wake of Viagra, 79 N.C. L. Rev. 779, 784-85 n.32 (March 2001) (citing Philip R. Lee & Felicia H. Stewart, Editorial, Failing to Prevent Unintended Pregnancy is Costly, 85 Am. J. Pub. Health 479, 479 (1995)). On the other hand, evidence does exist to show that the growing cost of health insurance is a real concern to employers and their employees. The 2001 annual survey of employer health benefits conducted by the Kaiser Family Foundation (Kaiser) and the Health Research and Educational Trust (HRET) reported that job-based health insurance costs increased by 11.0 percent from the spring of 2000 to the spring of 2001, the highest increase since 1992 and the fifth straight year of health care inflation. Kaiser/HRET, Employer Health Benefits: 2001 Annual Survey 1-2 (2001), available at http://www.kff.org/content/2001/3138/EHB2001_fullrpt.pdf. These rate increases translate to per-employee health plan costs of $2,650 a year for single coverage ($221 per month) and $7,053 a year for family coverage ($588 per month). Id. at 1. Small employers were once again the hardest hit, reporting health plan inflation rates of 14.4 percent (10 to 24 employees) and 16.5 percent (3 to 9 employees). Id. at 16. In addition, spending for prescription drugs has risen mush faster than for other types of health care. See Kaiser Prescription Drug Trends: A Chartbook Update (November 2001), available at http://www.kff.org/content/2001/3112/RxChartbook.pdf. U.S. spending for prescription drugs was $99.6 billion in 1999, more than doubling since 1990. Id. at 5. Although prescription drug spending is a small proportion (10%) of personal health care spending, it is one of the fastest growing components, increasing at double-digit rates. Id. National prescription spending has nearly doubled since 1995, compared to a one-third increase in expenditures for physician and clinical services and about a one-fifth increase for hospital care. Id. Moreover, prescription drug costs are the most rapidly increasing expense for employer-based insurance. For companies that cover prescription drugs in a separate plan, the cost of prescription drug coverage rose an average of 15.5 percent in 2001, a rate substantially higher than the overall employer health plan premium increase of 11.0 percent. Id. at 6. Employers have absorbed much of the rising cost because the healthy economy brought in more revenue to pay these expenses and the tight labor market made the need for comprehensive, low-cost packages necessary to attract and retrain employees. Employers assumed greater responsibility for plan premiums from 1993 to 2001 (paying 68 percent of family coverage in 1993 and 73 percent in 2001), but rising costs have increased employees’ average monthly contributions from $124 to $150 over the same period of time. Kaiser/HRET, Employer Health Benefits: 2001 Annual Survey 87 (2001). However, a downturn in the economy makes absorbing these costs When employers can no longer keep up with the rising cost of their health plans, they increase employee cost-sharing in the form of bigger monthly premiums, larger co-payments for doctor visits and prescription drugs, and higher out-of-pocket payments toward the deductible and coinsurance. Among large employers (200 or more employees), 75 percent are likely to increase employee costs this year, and 42 percent of smaller employers expect to do so. Id. at 3. In addition, even as employer coverage has been expanding in recent years, the number of employees turning down their employers’ offer of coverage has been steadily increasing. Employee Benefits Research Institute, EBRI Issue Brief No. 213, Executive Summary, Employment- Based Health Benefits: Who Is Offered Coverage vs. Who Takes It (September 1999), available at http://www.ebri.org/ibex/ib213.htm. Many who turn down health insurance coverage by their employer do so because they find the coverage just too costly. Id. Any increase in the cost of health insurance coverage by imposing mandates either judicially or legislatively jeopardizes the availability and affordability of plans to employers and their So while some women would gain coverage for contraceptive drugs under the District Court’s holding, other women and men predictably would lose their medical insurance entirely and be uninsured when they experience an illness, are accidentally injured, or require surgery. Employees who desire more comprehensive coverage for any purpose or condition are in danger of losing their health benefits altogether because the costs are rising for their employers and themselves, and insurers faced with rising costs are withdrawing from the market and leaving consumers with fewer alternatives. In addition, employers faced with increased premiums and the prospect of being liable for damages for the actions of the health plans they sponsor may determine not to provide this employee benefit. In Considering the Issue Before It, This Court Should Also
Consider the Broader Impact of Any Decision That
Requires Insurance Plans Provide Coverage of Any
Prescription, Treatment, or Medical Condition That Is Only
Available to or Somehow Unique to One Sex.

Because men and women are biologically different, a wide variety of physical characteristics, including but not limited to medical conditions, are unique to one gender or the other. As a result, a significant number of medical treatments are provided only to one gender, because the other Under the convoluted theory adopted by the district court, a limitation on insurance coverage for treatment of any of these conditions potentially would violate Title VII, because the affected gender would be deprived of coverage while the unaffected gender would not. As a few examples, potential challenges could be brought under this theory to try to force • surgical contraception such as tubal ligations and vasectomies, • in-vitro fertilization, artificial insemination, embryo transfer, fertility drugs, or any other artificial means of conception; • treatment for male sexual dysfunction and impotence; and • prescription coverage for Propecia, a male-pattern baldness This is hardly an exhaustive list, but it demonstrates the issues that may arise in this debate. In considering the issue before it, this Court should also consider the broader impact of any decision that requires that insurance plans provide coverage of any prescription, treatment, or medical condition that is only available to or somehow unique to one sex. Such a decision has the potential of greatly increasing the cost of employer-provided insurance Because the PDA Does Not Mandate That an Employer’s
Prescription Plan Cover Contraceptives, if Coverage Is To
Be Required, It Is for Congress To Decide.


The instant case involves politically charged issues with far-reaching
social consequences. For these reasons, the proper forum for their consideration is Congress and not the courts. Apparently aware that federal law does not currently mandate that an employer’s prescription plan cover contraceptives, legislators have proposed the federal Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) in both the Senate and the House of Representatives. S. 104, 107th Cong. (2001); H.R. 1111, 107th Cong. (2001). Both bills would require coverage of prescription contraceptive drugs and devices and contraceptive services under health plans. Specifically, under the bill, a group health plan, and a health issuer providing health insurance coverage in connection with a exclude or restrict benefits for prescription contraceptive drugs or devices approved by the Food and Drug Administration, or generic equivalents approved as substitutable by the Food and Drug Administration, if such plan provides benefits for other outpatient prescription exclude or restrict benefits for outpatient contraceptive services if such plan provides benefits for other outpatient services provided by a health care professional . . . . In addition, a number of state legislatures have addressed the issue of contraceptive coverage. On April 28, 1998, Maryland became the first state to require private-sector insurance policies to cover contraceptive drugs or devices if they cover prescription drugs. See Md. Code Ann., Ins. § 15-826. Since then, at least 19 states have passed legislation related to insurance coverage for contraceptives. For a listing of these states, see National Conference of State Legislatures, Women’s Health Insurance Coverage for Contraceptives (December 2001), available at http://www.ncsl.org/programs/health/contrace.htm in the Public User section. Indeed, contraceptive issues are a hot topic of debate in Congress and state legislatures across the country. The legislative debate illustrates not only the understanding that the PDA does not address prescription contraceptives but also that―even where there appears to be consensus that coverage of prescription contraceptives should be mandated―the scope of this mandate may still not be clear. One common skirmish in these debates has been from abortion opponents. Preven™, a drug that prevents the implantation of any fertilized egg, occupies one of the grayer areas in the reproductive rights controversy. See generally Bycott, supra, at 806-07. Some religious conservatives view Preven™ as another permutation of abortion inducement, similar to RU-486, which is also approved by the Food and Drug Administration but clearly terminates an already-existing pregnancy.4 Id. Thus, even in states where mandating legislation has been enacted, insureds may encounter difficulty in seeking coverage for Preven™, depending on how the applicable statute of 4 On July 16, 1998, the House of Representatives, as an amendment to a FY1999 appropriations bill offered by Rep. Nita Lowey (D-NY), voted to require health insurance companies covering federal employees to provide contraceptives along with other prescriptions. 144 Cong. Rec. H5718 (daily ed. July 16, 1998). An additional amendment offered by Rep. Chris Smith (R-NJ) sought to exclude “coverage for abortifacients,” including intrauterine devices (IUDs) and ECPs on the grounds that they sometimes act to prevent implantation of a fertilized egg. 144 Cong. Rec. H5721 (daily ed. July 16, 1998). The amendment was defeated 222-198, but illustrates the difficulty in reaching consensus on such highly controversial issues. 5 North Carolina avoids this issue of construction altogether by providing clear language against the coverage of Preven™. N.C. Gen. Stat. 58-3-178(c)(4)(b). However, most other state-enacted bills on contraception In addition, states enacting contraceptive legislation have addressed the issue of whether individuals, health care facilities, employers, or, in some cases, health plans can decline to provide services to which they have a religious, ethical, or moral objection.6 The question of which employers, if any, may object to contraceptive coverage for their employees adds yet another dimension to an already complex situation. Clearly, these are questions not for the courts but for our elected officials to decide after engaging in a thorough debate of the difficult issues. See The Lottawanna, 88 U.S. 558, 576-77 (1874) ("[W]e must always remember that the court cannot make the law . . . . If any change is desired in [a law], . . . it must be made by the legislative department"). coverage have not addressed the issue of whether Preven™ is a covered prescription. 6 For example the contraceptive coverage law enacted in Maryland contains a conscience clause allowing religious organizations to obtain an exemption from the law’s requirements, if covering contraceptives services under the insurance policy they provide for their employees “conflicts with the religious organization’s bona fide religious beliefs and practices.” See Md. Code Ann., Ins. § 15-826. However, not all states that have enacted bills on contraception coverage have included a “conscience” clause. CONCLUSION
For the foregoing reasons, amicus curiae Equal Employment Advisory Council respectfully submits that the decision below should be Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W., Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae CERTIFICATE OF COMPLIANCE PURSUANT TO
FED R. APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR CASE NO. 01-35870
I certify that: ___ Amicus Briefs Pursant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7000 words or 650 lines of text, Not subject to the type-volume limitations because it is an amicus
brief of no more than 15 pages and complies with Fed. R. App. P. CERTIFICATE OF SERVICE
This is to certify that two true and correct copies of the Brief of the Equal Employment Advisory Council as Amicus Curiae in Support of Defendant-Appellee and in Support of Reversal were served today on the following counsel via U.S. Mail, first class, postage prepaid, addressed as Lynn Sarko KELLER ROHRBACK 1201 Third Avenue Suite 3200 Seattle, WA 98101 Roberta N. Riley PLANNED PARENTHOOD OF WESTERN WASHINGTON 2001 East Madison Seattle, WA 98122-2959 Eve C. Garner PLANNED PARENTHOOD FEDERATION OF AMERICA, INC. 810 Seventh Avenue New York, NY 10019 James R. Dickens Michelle Valier MILLER NASH, LLP 4400 Two Union Square 601 Union Street Seattle, WA 98101-2352 Barbara T. Lindeman David D. Kadue SEYFARTH SHAW, LLP One Century Plaza 2029 Century Park East, Suite 3300 Los Angeles, CA 90067-3063 Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W., Suite 1200 Washington, D.C. 20005 (202) 789-8600 Heather L. MacDougall EMPLOYMENT LAW AFFILIATES, LLC 3352 Roundtree Estates Court Falls Church, VA 22042 (703) 206-9560 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL Areesman M:\1013\1352\brief\Bartells brief2.doc

Source: http://www.eeac.org/briefs/Bartells.pdf

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