Copyright (c) 1998 by Washington Law Review Association

Abstract: Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways in which federal and state officials might remedy this common form of gender discrimination.

More U.S. women confront unintended pregnancy than women in nearly every other developed country. One reason is that most employment-based health insurance programs in the United States exclude payment for contraceptives from otherwise comprehensive coverage for prescription drugs and medical services. The Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), prohibits discrimination in the provision of employee health benefits "on the basis of pregnancy, childbirth, and related medical conditions."¹ This Article considers whether the exclusion and limitation of coverage for contraceptive services in employment-based insurance programs violates the PDA.

Part I explores the incidence of unintended pregnancy and the medical, fiscal, social, and personal costs associated with it, and considers the ways in which lack of insurance coverage for contraception contributes to the problem of unwanted pregnancy. Part II describes patterns of delivery and financing of contraceptive services in the United States. Part III argues that the PDA prohibits employers from discriminating against women by excluding or limiting coverage for contraceptive services. Part IV asks, if excluding contraception from employment-based health insurance is pervasive, damaging, and illegal (in other words, a slam-dunk legal argument), why has no one noticed or asserted it? Part V discusses the impact and limits of applying the PDA to prohibit discrimination against contraception. Finally, Part VI describes and evaluates alternative ways in which the PDA might be enforced and considers state and federal proposals to increase insurance coverage for contraception.

I. UNINTENDED PREGNANCY IN THE UNITED STATES

Almost sixty percent of the 6.3 million pregnancies that occur annually in the United States are unintended. ² This rate is higher than that in any other developed country except France and much higher than most developed countries. ³ Many factors contribute to unintended pregnancy. ⁴ One important cause is the failure to use effective forms of birth control; more than half of all unintended pregnancies occur among the ten percent of American women who report that they do not use birth control. ⁵ One reason why women do not use birth control is because health insurance commonly excludes coverage for effective forms of contraception that physicians provide. ⁶ This Part explores the adverse consequences of unintended pregnancy that flow, in significant part, from the exclusion of contraception from private insurance. Unintended pregnancy: (1) increases infant mortality and morbidity; (2) generates financial costs for childbirth and the care of distressed newborns; (3) leads to high rates of abortion; and (4) limits women's abilities to perform and contribute to society and undermines national economic stability.

A. Unintended Pregnancy Increases Infant Mortality and Morbidity

Like the rates of unintended pregnancy, U.S. infant mortality and morbidity rates are higher than those of any other developed country and, indeed, higher than rates in many developing countries. ⁷ Many studies find that unintended pregnancy is the major explanation for these harms that newborns suffer. ⁸ These studies also show that increasing access to contraception is an important step in reducing infant mortality and morbidity.

It is not surprising that unintended pregnancies are more likely to produce unhealthy babies. ⁹ Pregnancy produces tremendous burdens on a woman's body and life, and an infant makes even greater demands on the mother and family. When a woman and family plan a child, they are better prepared to make the necessary sacrifices to meet the infant's needs. But when pregnancy is unintended, responding to the demands of pregnancy and infancy is much more difficult. 10

The adverse effects of unintended pregnancy do not end in infancy. Unwanted children and adolescents are nearly twice as likely as wanted children to receive psychiatric care for both mild and severe psychological disorders. ¹¹ In addition, they are twice as likely to have a record of juvenile delinquency and three times more likely to have a record of adult criminal activity. ¹²

B. Unintended Pregnancy Generates Increased Financial Costs

Even if unintended pregnancy results in a healthy baby, the financial costs of childbirth are much greater than the costs of many years of contraception. ¹³ If the unintended pregnancy results in a distressed newborn, the costs are even greater. "For every low-weight birth that is averted, the health care system saves between $14,000 and $30,000 in hospitalization costs associated with low birth weight in the first year of life." ¹⁴ It was estimated that by 1990:

[T]he nation will have spent at least $2.1 billion in first-year costs alone to care for the excess numbers of low-birth weight infants who need extensive medical care and whose tragic situations could have been averted had the nation moved more rapidly to reduce the incidence of low birth weight. ¹⁵ Reducing unintended pregnancy is the single most effective means of reducing the number of distressed, low birth weight babies. ¹⁶

C. Unintended Pregnancy Often Ends in Abortion

The U.S. abortion rate is higher than that of any Western European country. ¹⁷ Almost half (forty-four percent) of all unintended pregnancies in the United States end in abortion. ¹⁸ Abortion imposes enormous financial¹⁹ and psychic ²⁰ costs on women even when it is legal. President Clinton asserts that abortion should be "safe and legal, but rare." ²¹ But abortion cannot be rare unless women have access to contraception.

D. Unintended Pregnancy Limits Women's Abilities to Perform and Contribute to Society and Undermines National Economic Stability

In addition to its emotional, financial, and human costs, unintended pregnancy damages the national and world economies and communities. The adverse social and economic consequences of unintended pregnancy fall most harshly on women. The U.S. Supreme Court recognized that reality when it upheld a woman's right to choose abortion in Planned Parenthood v. Casey, stating that "[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." ²² Unplanned and unwanted pregnancies undermine women's abilities by precludinig women from participating fully in the "marketplace and the world of ideas." ²³

In 1995, the President's Council on Sustainable Development identified six important factors in sustaining national economic growth; access to family planning services was one of those factors. ²⁴ The Council recommended "[e]xpanding private insurance to cover the full range of reproductive health services" ²⁵ and described the social and economic damages caused by unintended pregnancy:

Because the United States has the world's third largest population and the largest economy, with an unparalleled scale of per capita consumption and waste generation, even slight changes in U.S. consumption patterns or population size can have a significant impact on sustainability. . . . [C]ontinued population growth steadily makes more difficult the job of mitigating the environ-mental impact of American resource use and waste production patterns. ²⁶

Thus, while unintended pregnancies are most damaging to the individual women who experience them, they also cause significant harm to society and the economy as a whole.

II. PATTERNS OF DELIVERY AND FINANCING CONTRACEPTIVE SERVICES IN THE UNITED STATES

Sterilization is the most commonly used form of contraception in the United States. ²⁷ It is also the only medically prescribed and provided contraceptive service available to both men and women. In 1990, forty-two percent of all contraceptive users in the United States were protected by sterilization (29.5% by female sterilization and 12.6% by vasectomy). ²⁸ While sterilization is a safe and effective method of contraception, it has serious disadvantages. It requires surgery and is, as a practical matter, irreversible. ²⁹ Nevertheless, surgical sterilization is the form of contraception most commonly covered by private insurance. ³⁰ Women in the United States confront significant barriers to access to other effective forms of reversible contraception. ³¹ Perhaps this explains why so many more people in the United States choose sterilization than in any other country.

The contraceptive pill is one of the most commonly used forms of reversible contraception, ³² used by twenty-seven percent of women who practice contraception in the United States. ³³ The pill is safe and highly effective when used properly. ³⁴ Except for health maintenance organizations (HMOs), about two-thirds of private insurance plans exclude coverage for contraceptive pills, even though virtually all private insurance plans include coverage for other prescription drugs. ³⁵ There is no FDA-approved contraceptive pill for men. ³⁶

Barrier methods, including the diaphragm and male and female condoms, are the third most popular contraceptive in the United States, used by 20.3% of contraceptive users. ³⁷ Barrier methods have the added advantage of providing some protection against sexually transmitted diseases. However, they are much less effective in preventing pregnancy than other forms of contraception. ³⁸ The male condom is available over-the-counter, while the diaphragm must be prescribed and fitted by a physician. Except for HMOs, over three-quarters of all U.S. private insurers exclude coverage for female diaphragms. ³⁹

Intrauterine devices (IUDs) are largely unavailable in the United States today, even though in Europe they are used by more than one quarter of all women using contraception. ⁴⁰ The IUD is highly effective, has few adverse side effects in most women, and is the least expensive form of contraception. 41 IUDs are unavailable to most women in the United States in part because doctors are not trained to provide them. ⁴² In addition, three-quarters of indemnity insurers and preferred provider organizations (PPOs) exclude coverage for IUDs. ⁴³

Norplant, the most recent contraceptive alternative, consists of six plastic matchstick size capsules containing the hormone progestin implanted under a woman's skin. ⁴⁴ By 1995, nearly one million U.S. women used Norplant. ⁴⁵ Norplant has been subject to extensive testing and appears to be highly effective and safe. ⁴⁶ Three-quarters of indemnity insurers and PPOs exclude coverage for Norplant. ⁴⁷ Even though IUDs and Norplant are more economical than pills because they remain effective for many years, the cost for many years of protection must be paid up front. ⁴⁸ This one-time cost creates a price barrier for women who do not have insurance coverage for contraception and hence must pay out of pocket. ⁴⁹

In summary, only fifteen percent of traditional indemnity plans cover all of the most commonly used reversible prescription contraceptives, and forty-nine percent of plans cover none of these methods. ⁵⁰ This data reveals several patterns of discrimination. Most insurance plans treat all forms of reversible contraception disfavorably relative to other medical services, drugs, and devices. ⁵¹ Furthermore, most insurance plans treat prescription contraception used only by women (i.e., pills, diaphragms, IUDs, and Norplant) less favorably than medical forms of contraception used by men (i.e., sterilization). ⁵² Condoms, which both men and women may purchase and use, are, like other forms of non-prescription drugs, not typically covered by health insurance. ⁵³

Insurance coverage patterns also reveal a preference for irreversible sterilization over reversible forms of contraception. ⁵⁴ The reasons for this preference are not clear. Indeed, treating permanent sterilization more favorably than reversible forms of contraception seems perverse. One possible explanation is that insurance has traditionally favored surgical services over other medical services. Today, however, virtually all insurance plans cover prescription drugs other than contraception. ⁵⁵

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