Two main factors explain why no one has raised a Title VII challenge to the common exclusion of contraceptives from otherwise comprehensive health insurance coverage. First, women affected by this exclusion, and indeed responsible employers, have difficulty obtaining even basic information about insurance coverage. Second, there are few lawyers available who are willing to take the financial risk necessary to raise these claims.

A. The Selection and Negotiation of Health Insurance Coverage

Typically, an employer either selects a health insurance plan for employees or offers employees a choice of plans with different features at different costs. ¹³⁰ Unfortunately, both employees and employers confront great difficulty in obtaining information about what is covered and what is excluded from health insurance plans. Following the Alan Guttmacher Institute's 1995 study revealing that most U.S. health insurers exclude contraception from otherwise comprehensive coverage for prescription drugs, ¹³¹ some employers and employees sought more detailed information about coverage in their own plans. They confronted great difficulty, however, obtaining detailed information about what their plans covered and excluded. ¹³²

An employer or insurer that fails to provide information about what an insurance plan does or does not cover violates the law. Under the Employee Retirement Income Security Act (ERISA), the federal law governing employee benefits, ¹³³ and under the laws of several states, ¹³⁴ employees must receive understandable information about their insurance coverage. But these laws are frequently ignored. ¹³⁵ Women often learn that contraception is excluded when they receive a booklet from the insurance plan, after they have enrolled, or when they submit a claim and it is denied. ¹³⁶ At that point, a woman's protest may be met with the response that she has "chosen" a plan that does not cover contraception. ¹³⁷ Unfortunately, although employees are legally entitled to information about what their health plan covers, and although plans that exclude coverage for contraception may violate Title VII, few individual women or employers have sufficient financial incentive to address these legal violations. Both employers and employees are concerned with a wide range of complex factors in selecting a health insurance plan, and coverage for contraception may not be on the top of anyone's list.

B. The Availability of Attorneys to Enforce Title VII Claims

The general unavailability of lawyers to enforce Title VII claims also prevents initiating more claims against employers for excluding contraception from health insurance. First, private attorneys press claims under the Civil Rights Act for individual clients who believe they have suffered discrimination. These attorneys are the most important actors enforcing U.S. civil rights laws. ¹³⁸ Clients seek the help of these lawyers when they have suffered a serious injury such as the loss of a job or a promotion. While Title VII provides attorneys' fees for lawyers who are successful in civil rights claims, ¹³⁹ private civil rights lawyers customarily ask clients to pay out of pocket for the costs of litigation. Moreover, the U.S. Supreme Court has interpreted attorney fee statutes to mean that lawyers may not receive enhanced fees for bringing claims that are novel or uncertain. ¹⁴⁰ Given the costs of contraception and the costs of litigation, individuals are unlikely to seek or find a lawyer to raise challenges to discriminatory insurance plans that do not cover contraception.

Second, civil rights organizations could bring suits arguing that excluding contraceptive services violates the Pregnancy Discrimination Act. But their resources are limited and many other serious issues demand their attention. ¹⁴¹ Third, the EEOC, which has primary executive responsibility for enforcing U.S. civil rights laws, could initiate litigation or other efforts to discourage employers from discriminating against women by excluding contraception from health insurance benefits programs. In recent years, however, the small EEOC staff has struggled with a backlog of bread-and-butter race and sex discrimination claims, sought to address the problems of sex harassment in the workplace, and attempted to respond to a significant public and judicial backlash against affirmative action programs. ¹⁴² With its energies focused on simply maintaining its already established caseload, expecting the EEOC to take on the new issue of employee benefit plan discrimination against contraception seems unrealistic. Furthermore, Title VII does not authorize the EEOC to issue regulations clarifying and implementing the meaning of the statute. ¹⁴³

Despite these fiscal and statutory limitations, the EEOC could do more than it is currently to prevent employers from discriminating against women by excluding contraceptives from coverage. For instance, the EEOC could issue a general "enforcement guidance" memo ¹⁴⁴ to clarify that the PDA's prohibition against discrimination on the basis of pregnancy and related conditions condemns employer policies that treat contraception less favorably than other physician services and prescription drugs. Alternatively, in response to a request by an employer, state human rights commissioner, or interested party, the EEOC could issue an opinion letter making the principle clear. ¹⁴⁵ Given that the EEOC's resources are minuscule relative to its responsibilities, however, no inference about the meaning of the PDA should be drawn from EEOC silence or inaction.

Further, the nature of the legal claim at issue here-the right of women who seek to avoid pregnancy to obtain employee insurance benefits that include contraceptive services-contributes to the lack of incentive to assert the claim in court. However important the issue is in the aggregate, the impact on individual women may be less significant. For example, when a woman is fired as a result of sex discrimination, she has a powerful incentive to sue: to get her job back and collect back pay. In contrast, the regular cost of buying oral contraceptives, or even the one-time cost of obtaining Norplant or an IUD, is smaller than the cost of hiring a lawyer to enforce the legal claim. These facts affect the incentives of both individual women and the attorneys who might represent them. ¹⁴⁶

V. THE POTENTIAL IMPACT OF FEDERAL JUDICIAL ENFORCEMENT OF THE PDA TO PROHIBIT DISCRIMINATION AGAINST WOMEN SEEKING TO AVOID PREGNANCY

Although enforcing the PDA to require that contraception be treated like other medical treatments would not increase access to birth control for all women, ¹⁴⁷ it would make a significant difference in making contraception more accessible and less costly to many women. First, it would make contraceptive services more accessible to large numbers of working women. Second, it would make such coverage available to the wives of men employed in companies that provide coverage for workers' dependents. ¹⁴⁸ Third, although a somewhat less certain argument, applying the PDA to contraception would make services available to the teenaged dependents of workers employed in jobs that offer coverage for dependents. ¹⁴⁹ Treating contraception the same as other medical services might also help to make such services more socially acceptable to impressionable teenagers. ¹⁵⁰

Although it is not possible to document precise connections between insurance coverage for contraception, contraceptive use, unwanted pregnancy, and the tragic harms described in Part I, people who use effective forms of contraception are less likely to get pregnant than those who do not. ¹⁵¹ Common sense suggests that if physician services and prescription drugs for contraception are included in insurance plans on the same terms as other medical services and prescription drugs, more people will use effective forms of contraception. In part, the effect is economic. If the drug or service is covered by insurance, people on tight budgets are more likely to use them. But the effect is not simply economic. When an insurance program that provides broad coverage for physician services and prescription drugs excludes coverage for contraception, that exclusion conveys a message that discourages contraception.

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