Federal agency says it's illegal to exclude contraceptive coverage

WASHINGTON - Viagra, a godsend to impotent men, set off protests among women who argued that health insurance companies that cover a male sex drug also should cover birth control pills for women.

Now a federal agency agrees, saying it's against the law for many health plans to exclude contraception.

The decision by the Equal Employment Opportunity Commission, announced Wednesday, directly affects only two women who complained to the commission. But it has potential implications for millions of others whose health insurance plans exclude birth control pills, diaphragms and other forms of prescription contraceptives.

''Our hope is that we announce a principle and employers want to comply with the law,'' said Ellen J. Vargyas, an EEOC attorney who worked on the case.

Women's advocates have pushed for this coverage in Congress, in the courts and in the media, but the EEOC is the first official body to conclude that the law already requires it.

The debate over contraceptive coverage burst into public when the male impotence drug Viagra came onto the market in April 1998. Women's groups argued that it was unfair that many insurance companies covered Viagra and did not cover birth control since both allow for sexual activity, albeit in different ways.

''It made people say, 'Oh my God, how dare them!''' said Eleanor Smeal, president of the Feminist Majority Foundation, who cheered the ruling. ''This is a major breakthrough.''

Specifically, the EEOC said that excluding contraceptives is a violation of the 1978 Pregnancy Discrimination Act, which requires equal treatment of women ''affected by pregnancy, childbirth or related medical conditions,'' in all aspects of employment, including fringe benefits. The law also protects women against discrimination because they have the ability to become pregnant, not just because they are already pregnant, the agency noted.

The commission also found that excluding contraceptives also amounts to sex discrimination because these prescriptions are available only for women.

Insurance companies argue that they are willing to cover contraceptives if employers are willing to pay for it. Some employers do just that; others say it's too expensive.

''Employers and consumers are struggling in many cases to be able to afford coverage,'' said Richard Coorsh, spokesman for the Health Insurance Association of America.

But the EEOC rejected arguments based on cost.

In the Pregnancy Discrimination Act, Congress specified that cost is not a defense, Vargyas said, adding that studies have found the cost is actually minimal. ''You can buy years and years of contraceptives for the cost of one unintended pregnancy.''

The health plan and employers involved in these cases - who were not identified - also argued that their plans only covered ''abnormal conditions.'' The commission rejected that argument, noting that other preventive drugs were covered by the plan.

The ruling is specific to the two cases presented to the commission and stops short of policy guidance that would apply to all employers. These particular health plans must cover contraceptives, the ruling said, because they already cover a wide range of preventive services, including vaccinations, drugs to control blood pressure, weight loss medication and preventive dental care. They also cover surgical sterilizations.

Another health plan - one that doesn't cover these services - might not be in violation of the law as interpreted by the EEOC.

But most health plans cover similar services, and the decision announced Wednesday could be used by other women who seek coverage from their employers.

''I believe it will be and should be a big impetus for employers to change their policies on their own,'' said Marcia Greenberger, co-president of the National Women's Law Center, one of 60 groups that asked the EEOC to look at the issue last year.

The ruling also could provide ammunition in lawsuits.

One such suit is already under way in Seattle, where pharmacist Jennifer Erickson has sued her employer, arguing that it's sex discrimination not to cover birth control pills.

''There are 60 million women of childbearing age in this country and I am standing up for them too,'' Erickson said in July, when she filed her suit in federal court.

Congress has considered legislation explicitly requiring health plans to cover contraceptives, but it hasn't gone anywhere. Congress has, however, required that health plans for federal workers cover these prescriptions.

A handful of states require insurers that cover other prescriptions to include contraceptives, but those laws only apply to state-regulated insurance plans. The states include Maryland, Vermont, Nevada, Maine, Georgia and Connecticut.

A survey in 1994 by the Alan Guttmacher Institute, a New York-based research group that focuses on reproductive issues, found that about half of large group insurance plans cover no contraception and only a third cover birth control pills.

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On the Net:

Equal Employment Opportunity Commission: http://www.eeoc.gov