One small step backward for birth control access...one giant LEAP backward for women’s health. Yesterday, the U.S. Court of Appeals for the Eighth Circuit issued a shameful ruling that limits access to birth control. The court ruled by a 2–1 vote that it is NOT discrimination for an employer health plan to exclude coverage for prescription birth control, even if it covers other preventive prescription drugs and devices.
It all started when Union Pacific, the largest railroad in North America, made a reprehensible decision to cover Viagra and deny coverage for birth control. Contraceptive coverage provides women with critical access to birth control they might not otherwise be able to afford. Yet, Union Pacific deliberately chose to exclude coverage of prescription contraceptives from its health care plan. And now, in a decision made public yesterday, the U.S. Court of Appeals for the Eighth Circuit has decided to let them get away with it.
Planned Parenthood attorneys helped win an earlier district court decision that rejected Union Pacific’s unfair treatment of its women employees. That court refused to let Union Pacific get away with denying women coverage for prescription drugs and devices to prevent pregnancy, while providing coverage for a broad array of prescriptions to prevent other non-pregnancy-related conditions.
The court called it what it is — illegal "pregnancy discrimination."
But now, in a split decision, two judges (one appointed by George W. Bush, the other by Ronald Reagan) have decided that, in spite of this different treatment of women, Union Pacific is not guilty of sex discrimination.
Roberta Riley, an attorney at Planned Parenthood of Western Washington who represents the Union Pacific plaintiffs, and had represented the plaintiffs who won the 2000 EEOC Policy Decision against their employer said:
"The Eighth Circuit’s reversal erodes the landmark 2000 Equal Employment Opportunity Commission decision...Title VII prohibits employers from making employment decisions — including what health care benefits to offer — on the basis of sex or pregnancy. But that’s exactly what Union Pacific did in this case."
This wrong-headed decision is binding on courts within the seven states in the Eighth Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. And it will have a deep and damaging impact on all unionized women employees of Union Pacific, wherever they live. Companies who deny their female employees coverage for prescription birth control have no excuse.
Planned Parenthood is stepping up efforts to undo the damage by urging Congress to pass the Prevention First Act, a bill that requires health plans to cover FDA-approved prescription birth control and related medical services. If it works, Union Pacific and the judges that have excused their reprehensible actions won’t be able to disregard women’s health any longer.